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SUPERSTITION 



FORCE 



ESSAYS ON 



THE WAGER OF LAW-THE WAGER OF BATTLE- 
THE ORDEAL-TORTURE. 



BY 

HENRY C. LEA 



" Antiquities, or remnants of history, are, as was said, « tanqnam tabula naufragii,' 
when industrious persons, by an exact and scrupulous diligence and observation, out of 
monuments, names, words, proverbs, traditions, private records and evidences, passages 
of books that concern not story, and the like, do save and recover somewhat from the 
deluge of time." 

Bacon, Advancement of Learning, Book II. 



PHILADELPHIA: 

HENRY C. LEA 

1866. 






Entered according to the Act of Congress,' in the year 1866, by 

HENRY C. LEA, 

in the Office of the Clerk of the District Court of the United States in and 
for the Eastern District of the State of Pennsylvania. 



PHILADELPHIA : 
COLLINS, PRINTER, 706 JAYNE STREET 



D 



PKEFACE. 



The aim of the following essays is simply to group 
together facts so that, with a slender thread of com- 
mentary, they may present certain phases of human 
society and progress which are not without interest for 
the student of history and of man. The authorities 
for all statements have been scrupulously cited, and it 
will be seen that, for the most part, they are drawn 
from the original sources. The conclusions the reader 
can verify for himself. 

In a more condensed form, the first three essays 
have already appeared in the "North American Ee- 
view." 

Philadelphia, July, 1866. 



I. 

THE WAGER OF LAW. 



Apart from the exact sciences, there is no subject which 
more fully repays the student than the history of juris- 
prudence. To the reflecting mind few popular quotations 
are so essentially false, or reveal so narrow a view of life 
as the often cited lines — 

"How small, of all that human hearts endure, 
That part which kings or laws can cause or cure !" 

Since the origin of society, each unit of our race has 
struggled on in his allotted path, through joys and griefs, 
fashioned, for the most part, by the invisible network of 
habits, customs, and statutes, which surround him on every 
side, and silently shape his daily actions. Thus the history 
of jurisprudence becomes the history of the life of man, and 
the society of distant ages is more distinctly presented to 
us in the crabbed sentences of codes than in the flowing 
rhetoric of the historian. Slender as may be the respect 
with which we of to-day sometimes regard rotatory assem- 
blymen and partisan judges, still are they none the less 
noteworthy personages. The parts are more important 
than the actors, and centuries hence it will be to our statute 
books and reports that the curious student will resort to 
find out what manner of men were the restless and ener- 
getic race which found self-government a harder task than 
the founding of a gigantic empire. 

The law-giver and the law-dispenser are the custodians 
of all that we hold dear on earth. Save the minister of 
God, what human being can have interests so vital confided 



14 THE WAGER OF LAW. 

to him, or can exercise so momentous an influence over his 
fellow-men ? Cyrus and Alexander, Tamerlane and Gen- 
ghis Khan have passed away ; their names alone remain, and 
the world is as though they had never been. The laws of 
Confucius and Manu, of Mahomet and Justinian still live, 
and will sway the destinies of races in the future as they 
have in the almost illimitable past. When Arogast and 
Bodogast, Salogast and Windagast assembled to draft into 
shape the rude customs of a roving and predatory tribe, 
they little thought that the Salique law which they founded 
would leave its impress for centuries on nations to which 
their very names would be unknown. Codes thus endowed 
with vitality must necessarily reflect the nature and the 
usages of the races for which they were compiled. The 
man and his law exercise a mutual reaction, and in the 
one we see an image of the other. The stern, resolute 
brevity of the law of the Twelve Tables furnishes the best 
corrective commentary on the easy credulity of Livy ; in 
the code of Moses, the Hebrew character and polity are 
portrayed in the strongest light and shade ; and, in general, 
the historian, who wishes to obtain or to convey a definite 
impression of a nation or a period, must have recourse to 
the laws which regulated the daily life of the people, and 
which epitomize their actions and modes of thought. It 
may be therefore not uninteresting to trace, through the 
dim light of antiquity, some rude outlines of customs which 
were the precursors of European civilization. 

In the German forests, Tacitus depicts an aggregation 
of tribes living principally on the spoils of war or of the 
chase, aided by the imperfect agriculture of their slaves. 
Personal independence is carried to its extreme. The 
authority of the ruler, except when commanding a military 
expedition, is almost nominal and scarcely extends beyond 
his immediate attendants, companions, or leudes. Each 
petty chief is under the control of the assembly of his sept, 



THE ANCIENT G'E R M A N S . 15 

to which all the freemen gather in arms and decide with- 
out appeal on all common interests. Dearest among their 
privileges is the right of private vengeance. The freeman 
who sustains an injury, and who disdains to summon his 
enemy before the mallum, or judicial assembly of the tribe, 
may call together his family and friends and exact what 
satisfaction he can with sword and axe. The interminable 
warfare of hostile families is, however, in most cases 
averted by the principle of compensation for injuries, and 
every crime is rated at its appropriate price, or wehrgild, 
payable to the injured party. 1 As the relatives are bound 
to aid in a quarrel settled by the strong hand, so are they 
entitled to share in the compensation, if peaceful measures 
are adopted. 2 On the other hand, when a criminal's poverty 
renders him unable to pay the fine, his kindred are held 
responsible for it, as they are also forced to defend him in 
the feud. 3 In its relations to the community, each family 

1 This system of private warfare as an alternative for refusal of redress 
is expressively condensed in an Anglo-Saxon proverb quoted approvingly in 
the laws of Edward the Confessor, as collected by William the Conqueror. 
— " Biege spere of side oSer bere — quod est dieere, lanceam erne de latere 
aut fer earn." — LI. Edwardi c. xii. (Thorpe's Ancient Laws, I. 467.) 

3 In Iceland and Norway, it was not until about 1270 that King Haco, in 
his unsuccessful effort at legislation, decreed that the blood-money for murder 
should no longer be divided among the family of the victim, but should be 
all paid to the heir. — Jarnsida, Mannhelge, cap. xxix. Previously to this, 
when the next of kin were females, and thus incompetent to prosecute on a 
charge of murder, the person who undertook that office was entitled to one- 
third of the fine. — Gragas, Sect. VIII. cap. lv. 

Ecclesiastical ties dissolved those of the family. Thus, among the Welsh 
of the tenth century, the laws of Hoel Dha specify that the clergy shall not 
be counted among the relatives, either as payers or payees in cases of mur- 
der. — LI. Eccles. Hoeli Dha, cap. viii. 

3 The most ancient barbarian code that has reached us — that of the Feini, 
or ancient Irish, in a fanciful quadripartite enumeration of the principles in 
force in levying fines, thus alludes to the responsibility of kindred : " And 
because there are four things for which it is levied : ' cin' (one's own crime), 
and * tobhach' (the crime of a near kinsman) , ' saighi' (the crime of a middle 
kinsman), and the crime of a kinsman in general." — Senchus Mor, I. 259. 
(Hancock's edition, Dublin, 1865.) 



16 THE WAGER OF LAW. 

is thus a unit for aggression or defence, and is responsible 
for the character and actions of each of its members. This 
peculiarity of the Teutonic tribes is important, as it ex- 
plains much that is otherwise singular in their subsequent 
legislation, leaving its traces late in the feudal and custom- 
ary law. 

The oldest known text of the Salique law is but little if 
at all posterior to the conversion of Clovis to Christianity. 
Four hundred years have therefore intervened between the 
vigorous sketches of Tacitus and the less picturesque but 
more detailed view afforded by the code. The changes 
produced by the interval are wonderfully small. A some- 
what more complex state of society has arisen ; government 
has assumed some power and stability, under the iron 
energy and resistless craft of Clovis ; fixed propert}^ and 
possessions have acquired importance ; fields and orchards, 
gardens and bee-hives, mills and boats appear as objects of 
value alongside of the herds and weapons which were their 
only wealth when the Roman historian condescended to 
describe his barbarous neighbors. Yet the same funda- 
mental principles are at work, and the relations of the in- 
dividual to his fellows remain unchanged. The right of 
private warfare still exists. The state is still an aggregate 

The most complete arrangement that I have met with for carrying out 
this principle occurs in the Icelandic legislation of the twelfth century, 
where the fines provided diminish gradually, as far as the relations in the 
fifth degree on both sides, each grade of the criminal's family paying its rate 
to the corresponding grade of the sufferer's kindred. — Gragas, Sect. IV. 
cap. cxiv. 

In Denmark, Eric VII., in 1269, relieved the kindred of a murderer from 
being compelled to share the fine, although the relatives of the victim con- 
tinued to divide the wehrgild. — Constit. Eric. ann. 1269, § vii. (Ludewig, 
Reliq. MSS. T. XII. p. 204.) But, even as late as the fourteenth century, 
the statutes of the city of Lille gave the malefactor a right to collect from" 
his relatives a portion of the wehrgild which he had incurred ; and elaborate 
tables were drawn up, showing the amount payable by each relation in pro- 
portion to his grade of kinship, even to third cousins. — Roisin, Franchises 
&c. de la ville de Lille, pp. 106-7. 



VARIETIES OF EVIDENCE. IT 

of families, rallying together for the field and for the court, 
and ready to sustain any of their members by force of arms, 
or by the procedures of justice. The forms of these pro- 
cedures are revealed to us, and we learn what efforts were 
made to soften the native ferocity of the Frank, and the 
modes by which he is tempted to forego the privilege of 
revenge. Every offence against persons or property is rated 
at its appropriate price, and a complete tariff of crime is 
drawn up, from the theft of a sucking-pig to the armed occu- 
pation of an estate, and from a wound of the little finger to 
the most atrocious of parricides ; nor can the offender refuse 
to appear when duly summoned before the medium, or claim 
the right of armed defence if the injured party has recourse 
to peaceable proceedings. 

But, between the commission of an offence and its proof 
in a court of justice, there lies a wide field for the exercise 
or perversion of human ingenuity. The subject of evidence 
is one which has taxed man's powers of reasoning to the 
utmost, and the subtle distinctions of the Roman law, with 
its probatio, prsesumptio juris, praesumptio juris tantum, 
the endless refinement of the glossators, rating evidence in 
its different grades, as probatio optima, evidentissima, aper- 
tissima, legitime/,, sufficiens, indubitata, dilucida, liquida, 
evidens, perspicua, and semiplena, and the complicated rules 
which bewilder the student of the common law, all alike 
show the importance of the subject, and its supreme diffi- 
culty. The semi-barbarous Frank, impatient of such ex- 
penditure of logic, arrived at results by a shorter and more 
direct process. 

Some writers have assumed that the unsupported oath 
of the accused was originally sufficient to clear him of a 
charge, and they present an attractive fancy sketch of the 
heroic age, when a lie is cowardice, and the fierce warrior 
disdains to shrink from the consequences of his act. All 
this is pure invention, for which proof may be vainly sought 
in any of the unadulterated " Leges Barbarorum." It was 

2* 



18 THE WAGER OF LAW. 

not, indeed, until long after they had declined from the 
rude virtue of their native forests, that an unsupported 
oath was receivable as evidence, and its introduction may 
be traced to the influence of the Roman law, in which its 
importance was overwhelming. 1 The Wisigoths, who 
adopted the Roman jurisprudence as their own, were the 
only race of barbarians who permitted the accused, in the 
absence of definite testimony, to escape on his single oath, 2 
and this exception only tends to prove the rule. So great 
was the abhorrence of the other races for practices of this 
kind, that at the council of Yalence, in 855, the Wisigothic 
custom was denounced in the strongest terms as an incen- 
tive to perjury. 3 It was not until long after the primitive 
customs of the wild tribes had become essentially modified 
by contact with, the remains of Roman civilization, that 
such procedures were regarded as admissible ; and, indeed, 
it required the revival of the study of the civil law in the 
twelfth century to give the 'practice a position entitled to 
respect.* 

1 The oath may be regarded as the foundation of Roman legal procedure. 
"Dato jurejurando non aliud quaeritur, quam an juratum sit; remissa 
quaestione an debeatur ; quasi satis probatum sit jurejurando." L. 5, § 2, D. 
xn. ii. The jusjurandum necessarium could alwaj's be administered by 
the judge in cases of deficient evidence, and the jusjurandum injure prof- 
fered by the plaintiff to the defendant was conclusive : " Manifestae turpitu- 
dinis et confessionis est nolle nee jurare nee jusjurandum referre." Ibid. 
1. 38. 

2 LI. Wisigoth. Lib. n. Tit. ii. c. 5. 

3 Concil. Valent. ann. 855, c. xi. Impia et Deo inimica et Christianaa 
religioni nimis contraria, lex iniquissima. 

4 Thus Alfonso the Wise endeavored to introduce into Spain the mutual 
challenging of the parties involved in the Roman jusjurandum, in jure, by 
his jura dejuicio. (Las Siete Partidas, P. in. Tit. xi. 1. 2.) Oddly enough, 
the same procedure is found incorporated in the municipal law of Rheims in 
the fourteenth century, probably introduced by some over-zealous civilian ; 
" Si alicui deferatur jusjurandum, necesse habet jurare vel referre jusju- 
randum, et hoc super quovis debito, vel inter quasvis personas." — Lib. 
Pract. de Consuetud. Remens, § 15 (Archives Legislat. de Reims, P. I. p. 37). 
By this time, however, the oaths of parties had assumed great importance. 



CLASS PRIVILEGES. 19 

It is true that occasionally, in the early legislation of the 
barbarians, an instance occurs in which certain privileges 
in this respect are accorded to some classes in the commu- 
nity, but these are special immunities bestowed on rank, 
and are therefore also exceptions, which go to prove the 
universality of the rule. Thus in one of the most primitive 

In the legislation of St. Louis, they occupy a position which was a direct 
incentive to perjury. Thus he provides for the hanging of the owner of a 
heast which had killed a man, if he was foolish enough not to swear that he 
was ignorant of its heing vicious. "Et si il estoit si fox que il deist que il 
seust la teche de la beste, il en seroit pendus pour la recoignoissance." — 
Etablissements, Liv. I. chap. cxxi. 

In certain local codes, the purgatorial power of the oath was carried to 
the most absurd extent. Thus, in the thirteenth century, the municipal law 
of the Saxons enabled the accused in certain cases to clear himself, however 
notorious the facts of the case, and no evidence was admitted to disprove his 
position. " Si quis aliquid agit extra judicium, et hoc maxime est notorium, 
id negare possit, praestito juramento, nee admittantur testes contra eum ; 
hoc juris est." (Jur. Provin. Saxon. Lib. i. Art. 15, 18.) This irrational 
abuse was long in vogue, and was denounced by the Council of Basel in the 
fifteenth century. (Schilter. Thesaur. II. 291.) It only prevailed in the 
North of Germany; the Jus Provin. Alaman. (cap. ccclxxxi. § 3), which 
regulated Southern Germany, alludes to it as one of the distinguishing fea- 
tures of the Saxon code. 

So, also, at the same period a special privilege was claimed by the inhabi- 
tants of Franconia, in virtue of which a murderer was allowed to rebut with 
his single oath all testimony as to his guilt, unless he chanced to be caught 
with the red hand. "Franconiae cives hoc juris habent, quod si aliquem 
occidunt, nisi in ipso facto deprehendantur, purgare se possunt juramento, 
si asserere volunt per illud se esse innocentes." — Jur. Provin. Alaman. cap. 
cvi. § 7. 

A charter granted to the commune of Lorris, in 1155, by Louis-le-Jeune, 
gives to the burghers the privilege of rebutting by oath, without conjurators, 
an accusation unsupported by testimony. — " Et si aliquis hominum de Lor- 
riaco accusatus de aliquo fuerit, et teste comprobari non poterit, contra pro- 
bationem impetentis, per solam manum suam se disculpabit." — Chart. 
Ludovic. junior, ann. 1155, cap. xxxii. (Isambert, Anciennes Lois Fran- 
caises I. 157.) And, in comparatively modern times, in Germany, the same 
rule was followed. "Juramento rei, quod purgationis vocatur, saepe etiam 
innocentia, utpote quae in anima constitit, probatur et indicia diluuntur;" 
and this oath was administered when the evidence was insufficient to justify 
torture. (Zangeri Tract, de Quaestionibus cap. iii. No. 46.) In 1592, Zanger 
wrote an elaborate essay to prove the evils of the custom. 



20 THE WAGER OP LAW. 

of the Anglo-Saxon codes, which dates from the seventh 
century, the king and the bishop are permitted to rebut 
an accusation with their simple asseveration, and the thane 
and the mass-priest with a simple oath, while the great 
body both of clerks and laymen are forced to clear them- 
selves by undergoing the regular form of canonical com- 
purgation which will be hereafter described. 1 These in- 
stances of class privileges are too numerous throughout 
the whole period of the dark ages to afford any basis for 
general deductions. 2 

So far, indeed, were the barbarians from confiding in the 
integrity of their fellows that, as they emerge into the light 
of history, their earliest records show how eagerly they 
endeavored to obtain some additional guarantee for the 
oaths of litigants. What these guarantees were during 
the prevalence of paganism we can only guess. After their 
conversion to Christianity, as soon as written documents 
afford us the means of tracing their customs, we find many 
expedients adopted. As the practice of invoking objects 
of affection or veneration in witness of an oath has been 
common to mankind in all ages, 3 so the forms of religion 

1 Laws of Wihtraed, cap. 16-21. Comp. LI. Henrici I. Tit. lxiv. § 8. 

2 Thus by the law of southern Germany in the thirteenth century, the 
unsupported oath of the claimant was sufficient if he was a personage of sub- 
stance and repute, while if otherwise, he was obliged to provide two conju- 
rators. (Jur. Provin. Alaman. cap. ccxliv. §§ 7, 8.) So in Spain, until the 
middle of the fourteenth century, the fijodalgo or noble could rebut a claim 
in civil cases by taking three solemn oaths, in which he invoked the ven- 
geance of God in this world and the next. — " Nuestro Senor Dios, a quien lo 
jurades, vos lo demande en estro mundo al cuerpo, e en il otro al animo." 
(Fuero Viejo, Lib. in. Tit. ii.) 

3 Thus, in the Roman law, oaths were frequently taken on the head of the 
litigant, or on those of his children. (Ll. 3, 4, D. xn. ii.) The code of 
Manu, which regards oaths as a satisfactory mode of proof, endeavors to 
secure their veracity by selecting for invocation those objects most likely to 
impress the different castes into which society was divided. 

"And in cases where there is no testimony, and the judge cannot decide 
upon which side lies the truth, he can determine it fully by administering 
the oath. 



MULTIPLE OATHS. 21 

were speedily called in to lend sanctity to the imprecation, 
by ingenious devices which were thought to give additional 
solemnity to the awful ceremony. In the middle of the 
sixth century, Pope Pelagius I. did not disdain to absolve 
himself from the charge of having been concerned in the 
troubles which drove his predecessor Yigilius into exile, by 
taking a disculpatory oath in the pulpit, holding over his 
head a crucifix and the Gospels. 1 About the same period, 
when the holy Gregory of Tours was accused of reproachful 
words truly spoken of the infamous Fredegonda, a council 
of bishops decided that he should clear himself of the charge 
by oaths on three altars, after celebrating mass on each, 
which he duly performed, doubtless more to his corporeal 
than his spiritual benefit. 2 This plan of reduplicating oaths 
on different altars was an established practice among the 
Anglo-Saxons, who, in certain cases, allowed the plaintiff 
to substantiate his assertion by swearing in four churches, 
while the defendant could rebut the charge by taking an 
oath of negation in twelve. 3 Seven altars are similarly 
specified in the Welsh laws of Hoel Dha. 4 

" Oaths were sworn by the seven great Richis, and by the gods, to make 
doubtful things manifest, and even Vasichtha sware an oath before the 
king Soudama, son of Piyavana, when Viswamitra accused him of eating a 
hundred children. 

"Let not the wise man take an oath in vain, even for things of little 
weight ; for he who takes an oath in vain is lost in this world and the next. 

" Let the judge swear the Brahmin by his truth; the Kchatriya by his 
horses, his elephants, or his arms ; the Vaisya by his cows, his corn, and his 
gold; the Soudra by all crimes." — Book vn. v. 109-113. (After Delong- 
champs' translation.) 

A curious exception to this general principle is found in the legislation of 
the ancient Egyptians, where the laws of Bocchoris received as conclusive 
the simple oath of a debtor denying his indebtedness, in cases where there 
were no writings. — Diod. Sic. L. i. cap. lxxix. 

1 Anastas. Biblioth. No. lxh. 

2 Gregor. Turon. Hist. Lib. v. cap. xlix. Gregory complains that this was 
contrary to the canons, of which more hereafter. 

3 Dooms of Alfred, cap. 33. 

4 LI. Hoeli Dha cap. 26. According to the Fleta, as late as the thirteenth 
century, a custom was current among merchants, of proving the payment of 



22 THE WAGER OF LAW. 

The intense veneration with which relics were regarded, 
however, caused them to be generally adopted as the most 
effective means of adding security to oaths, and so little 
respect was felt for the simple oath that ere long the ad- 
juncts came to be looked upon as the essential feature, and 
the imprecation itself to be divested of binding force with- 
out them. Thus, in 680, when Ebroin, mayor of the palace 
of Burgundy, had defeated Martin, Duke of Austrasia, and 
desired to entice him from the stronghold of Laon, in 
which he had taken refuge, two bishops were sent to him 
bearing the royal reliquaries, on which they swore that his 
life should be safe. Ebroin, however, had astutely removed 
the holy remains from their cases in advance, and when he 
thus got his enemy in his power, he held it but a venial 
indiscretion to expose Martin to a shameful death. 1 How 
thoroughly this was in accordance with the ideas of the 
age is shown by the incorporation, in the canons of the 
church, of the doctrine that an oath was to be estimated 
by its externals and not by itself. Contemporary with 
Ebroin was Theodore, Archbishop of Canterbury, whose 
Penitential is the oldest that has reached us, and this vene- 
rable code of morality assumes that a perjury committed on 
a consecrated cross requires, for absolution, three times the 
penance necessary in cases where the oath had been taken on 
an unconsecrated one, while, if the ministration of a priest 
had not been emploj'ed, the oath was void, and no penalty 
was inflicted for its violation. 2 Two centuries later, eccle- 

a debt by swearing in nine cburcbes. (Thorpe, Ancient Laws, I. 82.) The 
Moslem jurisprudence has a somewhat similar provision for accusatorial 
oaths in the Iesame, by which a murderer can be convicted, in the absence 
of testimony or confession, by fifty oaths sworn by relatives of the victim. 
Of these there must be at least two, and the fifty oaths are divided between 
them in proportion to their respective legal shares in the Die, or blood- 
money for the murder. — (Du Boys, Droit Criminel des Peuples Modernes, 
I. 269.) 

1 Fredegarii Chron. cap. xcvii. 

2 Qui pejerat in manu episcopi aut in cruce consecrata III. annos poeni- 
teat. Si vero in cruce non consecrata, annum unum poeniteat; si autem 



ADJUNCTS ESSENTIAL TO THE OATH. 23 

siastical authority was even found to admit that a powerful 
motive might extenuate the sin of perjury. If committed 
voluntarily, seven years of penitence were enjoined for its 
absolution ; if involuntarily, sixteen months, while if to 
preserve life or limb, the offence could be washed out with 
four months. 1 When such doctrines were received and 
acted upon, we can hardly wonder at the ingenious device 
which the sensitive charity of King Robert the Pious imi- 
tated from the duplicity of Ebroin, to save the souls of 
his friends. He provided two reliquaries on which to re- 
ceive their oaths — one for his magnates, splendidly fabri- 
cated of costal and gold, but entirely empty, the other for 
the common herd, plainer and enshrining a bird's egg. 
Knowing in advance that his lieges would be forsworn, he 
thus piously sought to save them from sin in spite of 
themselves, and his monkish panegyrist is delighted in 
recounting this holy deceit. 3 

in roanu hominis Iaici juraverit, nihil est. — Theodori Cantuar. Poenit. cap. 
xxiv. § 2. 

1 Regino. de Eccles. Discip. Lib. i. cap. ccc. Notwithstanding the 
shocking laxity of these doctrines, it is not to be supposed that the true 
theory of the oath was altogether lost. St. Isidor of Seville, who was but 
little anterior to Theodore of Canterbury, well expresses it: "Quacunque 
arte verborum quisque juret, Deus tamen, qui conscientiae testis est, ita hoc 
accipit, sicut ille qui juratur intelligit," and this, being adopted in successive 
collections of canons, coexisted with the above as a maxim of ecclesiastical 
law (Ivon. Decret. P. xn. c. 36. — Gratian. caus. xxii. q. 2 can. 13.) 

3 Helgaldi Vit. Roberti Regis. — The profit which the church derived from 
the administering of oaths on relics affords an easy explanation of her teach- 
ings, and of the extension of such practices as those alluded to in the text. 
These superstitions and their resultant advantages are well illustrated by 
the example of the holy taper of Cardigan, in Wales. A miraculous image 
of the Virgin was cast ashore, bearing this taper burning in her hand. A 
church was built for it, and the taper " contynued styll burnynge the 
space of nyne yeres, without wastynge, untill the tyme that one forsware 
himselfe thereon, so then it extincted, and never burned after." At the 
suppression of the house under Henry VIII., the prior, Thomas Hore, testi- 
fied : " Item, that since the ceasynge of burnynge of the sayd taper, it was 
enclosed and taken for a greate relyque, and so worshipped and kyssed of 
pylgremes, and used of men to sweare by in difficill and harde matters, 



24 . THE WAGER OF LAW. 

It may readily be believed that the wild barbarian, who 
was clamoring for the restoration of stolen cattle, or the 
angry relatives, eager to share the wehrgild of some mur- 
dered kinsman, would scarcely submit to be balked of their 
rights at the cost of simple perjury on the part of the 
criminal. While their Christianity was yet new, they would 
not attach much value to the additional security afforded by 
religious ceremonies or superstitious observances, and, as 
we have seen, before they became old in the faith, craft and 
trickery denied the most sacred solemnities. It was there- 
fore natural that they should still have recourse to an an- 
cestral custom, which had arisen from the structure of their 
society, and which derived its guarantee from the solidarity 
of families alluded to above. This was the remarkable 
custom which was subsequently known as canonical com- 
purgation, and which long remained a part of English 
jurisprudence, under the name of the Wager of Law. The 
defendant, when denying the allegation under oath, appeared 
surrounded by a number of companions — juratores, conju- 
ratores, sacramentales, collaudantes, compurgatores, as they 
were variously termed — who swore, not to their know- 
ledge of the facts, but as sharers and partakers in the oath 
of denial. 

This curious form of procedure derives importance from 
the fact that it is an expression of the character, not of an 
isolated sept, but of nearly all the races that have moulded 
the destinies of Europe. The Ostrogoths in Italy, and 
the Wisigoths of the South of France and Spain were the 
only nations in whose codes it occupies no place, and 
they, as has already been remarked, at an early period 
yielded themselves completely to the influence of the 

whereof the advauntage admounted to greate sommes of money in tymes 
passed, payenge yerely to the same XXti nobles for a pencion unto thabbott 
of Chersey." (Suppression of Monasteries, p. 186. Camden Soc. Pub.) 
The Priory of Cardigan was dependent upon the Abbey of Chertsey, and 
the sum named was iipparently the abbot's share of the annual spoils. 



ANTIQUITY OF COMPURGATION. 25 

Roman civilization. On the other hand, the Salians, the 
Ripuarians, the Alamanni, the Baioarians, the Lombards, 
the Frisians, the Saxons, the Angli and Werini, the Anglo- 
Saxons, and the Welsh, races springing from origins 
widely diverse, all gave to this form of purgation a promi- 
nent position in their jurisprudence, and it may be said 
to have reigned from Southern Italy to Scotland. 

That the custom was anterior to the settlement of the 
barbarians in the Roman provinces is susceptible of rea- 
sonable proof. The earliest text of the Salique law pre- 
sents us with the usages of the Franks unaltered by any 
allusions to Christianity, and it may therefore be presumed 
to date from a period not later than the conversion of 
Clovis. In this primaeval code there are directions for 
the employment of conjurators, which show that the pro- 
cedure was a settled and established form at that period. 1 
So in the Frisian law, which, although compiled in the 
eighth century, still reveals pagan customs and the primi- 
tive condition of society, the practice of compurgation 
evidently forms the basis of judicial proceedings. The 
other codes have only reached us in revisions subsequent 
to the conversion of the several tribes, and their authority 

1 First Text of Pardessus, Tit. xxxix. § 2, and Tit. xlii. § 5 (Loi Salique, 
Paris, 1843, pp. 21, 23). It is somewhat singular that in the subsequent re- 
censions of the code the provision is omitted in these passages. One cannot 
without hesitation accuse Montesquieu of ignorance, and yet it is difficult 
under any other supposition to account for his assertion that canonical 
compurgation was unknown to the Salique law (Esprit des Loix, Lib. 
xxviii. chap. 13), an assumption from which he proceeds to draw the most ex- 
tensive deductions. Although it is referred to but twice in the Lex Emen- 
data of Charlemagne (Tit. 1., lv.), still those references are of a nature to 
show that it was habitually practised ; while the earlier texts, of which that 
of Herold and the Wolfenbuttel MS. were accessible to him in the well- 
known edition of Eckhardt, contain precise directions for its use, designating 
the conjurator under the title of Thalapta. Even without these, however, 
the Merovingian and Carlovingian Capitularies, the Formulary of Marculfus, 
and the history of Gregory of Tours should have preserved him from so gross 
an error. 



26 THE WAGER OE LAW. 

on this point is, therefore, not so absolute. The univer- 
sality of the practice, however, at a period when intercom- 
munication was rare, and ancestral habits not easily 
infringed upon, is a strong corroborative evidence that its 
origin with all is traceable to prehistoric times. 1 

The church, with the tact which distinguished her deal- 
ings with her new converts, was not long in adopting a 
system which was admirably suited for her defence in an 
age of brute force. As holy orders sundered all other ties, 
and as the church was regarded as one vast family, eccle- 
siastics speedily arrogated to themselves and obtained the 
privilege of having men of their own class as compurgators, 
and, thus fortified for mutual support, they were enabled 
to resist the oppressors who invaded their rights on every 
hand. How completely it became part and parcel of eccle- 
siastical law is shown by Gregory II. in the early part of the 
eighth century, when he ordered its employment in cases 
where husband and wife desired to deny the consummation 
of marriage. 2 At last the final seal of approbation was 
bestowed when Charlemagne, in the year 800, went to Rome 
for the purpose of trying Pope Leo III. on a grave charge, 

1 Among the Anglo-Saxons, for instance, the earliest written code is the 
Dooms of JEthelbirht (Bedae Hist. Angl. II. 5), compiled shortly after his 
conversion by Augustine in 597. It is scarcely more than a list of fines and 
punishments, containing no instructions for judicial procedures, and there- 
fore its silence on the subject of compurgation affords no indication on the 
subject. The next in point of date, however, the Dooms of Hlothhsere and 
Eadric, promulgated about A. D. 680, alludes to conjurators under the name 
of cBwdas (cap. 2, 4, 5, &c), after which they form a prominent feature in 
Anglo-Saxon jurisprudence. 

It is somewhat remarkable that the custom should not have been indige- 
nous among the inhabitants of Iceland, when it was universal among their 
parent Scandinavian races. Their earliest code, the Gragas, which dates 
from the twelfth century, contains no allusion to it (Schlegel, Comment, ad 
Gragas p. lxxxiv.). It was, however, introduced in the Jamsida, a code 
which Haco of Norway endeavored, with indifferent success, to impose upon 
them towards the close of the thirteenth century. 

2 Uterque eorum septima inanu propinquorum, tactis sacrosanctis reliquiis, 
jurejurando dicat ut nunquam, etc. — Can. Requisisti, caus. xxxiii. q. 1. 



ADOPTED BY THE CHURCH. 2? 

and in that august presence th'e Pontiff, whom no witnesses 
dared to accuse, cleared himself of the crimes imputed to 
him by solemnly taking the oath of denial in company with 
twelve priests as compurgators. 1 Three years afterwards, 
the Emperor decreed that, in all doubtful cases, priests 
should defend themselves with three, five, or seven ecclesi- 
astical compurgators, and he announced that this de- 
cision had been reached by the common consent of Pope, 
patriarchs, bishops, and all the faithful. 3 It is true that a 
few months later, on being shown a decretal of Gregory II. 3 

1 Eginhart. Armal. ann. 800. — The monkish chroniclers have endeavored 
to conceal the fact that Leo underwent the form of trial like a common 
criminal, but the evidence is indubitable. Charlemagne alludes to it in the 
Capitulum Aquisgranense ann. 803, in a manner which admits of no dispute. 

2 Consultu domini et patris nostri Leonis Apostolici ceterorumque Romanae 
ecclesiae episcoporum et reliquorum sacerdotum sive Orientalium et Grae- 
corum patriarcharum et multorum sanctorum episcoporum et sacerdotum, 
necnon et nostrorum episcoporum omnium ceterorumque sacerdotum ac 
levitarum auctoritate et consensu, atque reliquorum fidelium et cunctorum 
consiliariorum nostrorum consultu. — Capit. Aquisgran. ann. 803, cap. vii. 

3 De presbytero vero vel quolibet sacerdote a populo accusato, si certe 
non fuerint testes, qui crimini illato approbent veritatem, jurejurando erit 
in medio, et ilium testem proferat de innocentiae suae veritate, cui nuda et 
aperta sunt omnia, sicque maneat in proprio gradu. — Bonifacii Epist. cxxvi. 

The subject of the oaths of priests was one of considerable perplexity 
during the dark ages. Among the numerous privileges claimed by the sacer- 
dotal body was exemption from the necessity of swearing, and their efforts 
to this end date from an early period. That it was a disputed question even 
in the time of St. Augustine is shown by his arguing that the responsibility 
properly attaches to him who requires the oath, not to the oath-taker him- 
self. "Non est contra Dei praeceptum juratio, quae a malo est non jurantis 
sed incredulitatis ejus a quo jurare cogitur. . . . Quantum ad me pertinet, 
juro, sed quantum mihi videtur, magna necessitate compulsus." (Apud Ivon. 
Decret. P. xir. c. 3, 8.) In 456, the Emperor Marcian admitted that eccle- 
siastics were forbidden by the canons to swear — "quia ecclesiasticis regulis, 
et canone a beatissimis episcopis antiquitus instituto, clerici jurare pro- 
hibentur." (Const. 25 C. I. 3.) The Rule of St. Benedict contained a clause 
"Non jurare, ne forte perjuret," on which his commentator Smaragdus, in 
the ninth century, observes "non est contra Dei praeceptum jurare," but out 
of abundant caution he adds "necesse est ergo ut nunquam juret, qui per- 
jurare timet." (Comment, in Reg. S. Ben. cap. iv. § 27.) Even Charlemagne 



28 THE WAGER OF LAW. 

ordering the clergy to rebut all accusations with their 
single oaths, he modified his previous command, and left 

in 801 yielded his assent to the rule, and forbade the clergy from taking 
formal oaths — "ut nullus sacerdos quicquam cum juramento juret." (Capit. 
ann. 801.) 

This, however, had no permanent effect. The bishops of Neustria, who 
in 858 claimed exemption from taking oaths of allegiance, admitted that 
judicial oaths could properly be exacted of them. (Cap. Car. Calvi Tit. xxvii. 
c. 15.) As the line of demarcation between the clergy and the laity grew 
wider and deeper, the effort was renewed, and the oath was regarded as a 
degradation to those engaged in the sacred ministry of the altar. " Manus 
enim per quam Corpus Christi conficitur juramento polluetur? Absit !" 
The Emperor Henry II., whose devotion to the church earned for him the 
honors of canonization, endeavored to reconcile the conflicting demands of 
piety and common sense by releasing, in 1020, the priesthood from the neces- 
sity of taking oaths, but allowing them to put forward substitutes, and thus 
to take the oath by proxy. "Quapropter nos, utriusque, videlicet divinse et 
humanae, legis intentione servata, decernimus ut non episcopus, non abbas, 
non presbyter, non cujuscunque ordinis clericus, non aliquis monachus vel 
sanctimonialis, in quacunque controversia, sivi criminali sive civili, jusju- 
randum compellatur qualibet ratione subire, sed suis idoneis advocatis hoo 
officium liceat delegare." — Constit. Ariminens. S. Henrici. (Migne's Patro- 
togia, T. 140, p. 232.) 

Where legislation was so variable and conflicting, it is not easy to ascer- 
tain positive results ; but in the eleventh century it would seem that before 
lay judges ecclesiastics summoned as witnesses could not be forced to the 
oath, but that when they themselves were parties it could be administered, 
at the option of their superior, with the proviso that it should be employed 
only in important cases. (Cf. Ivon. Panorm. Lib. v. c. 9, 10, 11.) Ivo of 
Chartres, whose authority as a canonist was undoubted, classes the prohibi- 
tion among the "praeceptiones mobiles," explaining that a necessary oath is 
no sin, but that he who can avoid swearing is in less danger of committing 
perjury than he who takes an oath. "Non quod malum sit in contractibus 
humanis ex necessitate jurare ; sed quod longius sit a perjurio qui nunquam 
jurat, quam ille qui qualicunque occasione jurat." (Prolog, in Decretum.) 
The struggle between the secular and ecclesiastical authorities on this subject 
is well exemplified in a case which occurred in 1269. The Archbishop of 
Rheims sued a burgher of Chaudardre. When each party had to take the 
oath, the prelate demanded that his should be taken by his attorney. The 
defendant demurred to this, alleging that the archbishop had in person pre- 
sented the complaint. Appeal was made to the Parlement of Paris, which 
decided that the defendant's logic was correct, and that the personal oath of 
the prelate was requisite. (Olim, I. 765.) 

In Spain, a bishop appearing in a secular court, either as plaintiff or 



GENERALLY USED BY ECCLESIASTICS. 29 

the matter to the discretion of his prelates; 1 but this had 
no practical result. In 823, Pope Pascal I. was more than 
suspected of complicity in the murder of Theodore and 
Leo, two high dignitaries of the papal court. Desirous to 
avoid an investigation by the commissioners of Louis-le- 
Debonnaire, who were sent for that purpose, he hastily 
purged himself of the crime in anticipation of their arrival, 
by an oath taken with a number of bishops as his com- 
purgators; 3 and it is a striking example of the weight 
attaching to the system, that although the assumed fault 
of the victims had been their devotion to the imperial 
party, and though the Pope had by force of arms prevented 
any pursuit of the murderers, the Emperor was powerless 
to exact satisfaction, and there was nothing further to be 
done. Pope Pascal stood before the world an innocent 
man. 

It is true that, in the tenth century, Atto of Yercelli 
complains bitterly that a perverse generation refused to be 
satisfied with the single oath of an accused priest, and re- 
quired him to be surrounded by compurgators of his class, 3 
which that indignant sacerdotalist regarded as a grievous 
wrong. As the priesthood, however, failed in obtaining 
the entire immunity for which they strove during those 
turbulent times, the unquestioned advantages which com- 
purgation afforded recommended it to them with constantly 
increasing force. Forbidden at length to employ the duel in 
settling their differences, and endeavoring, in the eleventh 
and twelfth centuries, to obtain exemption from the ordeal, 
they finally accepted compurgation as the special mode of 

defendant, was not exempted from the oath, hut had the singular privilege 
of not heing compelled to touch the Gospels on which he swore. — Siete Par- 
tidas, P. m. Tit. xl. 1. 24. 

1 Capit. de Purgat. Sacerd. ann. 803. 

3 Eginhard. Annal. ann. 823. 

3 Satisfactionem igitur accusati sacerdotis sub jurejurando minime dicunt 
valere, nisi plures etiam sacerdotes secum compellat jurare. — Atton. de Pres 
suris Ecclesiast. P. I. 

3* 



30 THE WAGER OF LAW. 

trial adapted to members of the church, and for a long 
period we find it recognized as such in all the collections 
of canons and writings of ecclesiastical jurists. 1 From this 
fact it obtained its appellation of " purgatio canonica," or 
canonical compurgation. 

As already remarked, the origin of the custom is to be 
traced to the principle of the unity of families. As the 
offender could summon his kindred around him to resist an 
armed attack of the injured party, so he took them with 
him to the court, to defend him with their oaths. Accord- 
ingly, we find that the service was usually performed by 
the kindred, and in some codes this is even prescribed by 
law, though not universally. 3 The practical working of the 

1 Burchardus, Ivo, Gratianus, passim. — Ivon. Epist. 74. 

2 L. Longobard, Lib. ii. Tit. xxi. § 9, Tit. lv. § 12.— L. Burgund, Tit. 
viii.— L. Eccles. Hoeli Dha c. 26. Laws of Ethelred, Tit. ix. §§ 23, 24.— L. 
Henrici I. cap. Ixxiv. § 1. — See also tbe decretal of Gregory II. alluded to 
above. 

This point affords an illustration of tbe divergent customs of the Latin and 
Teutonic races. The Roman law exercised great discrimination in admitting 
the evidence of a relative to either party in an action (Pauli Sentent. Lib. 
v. Tit. xv. — LI. 4, 5, 6, 9. Dig. xxn. v.). The Wisigoths not only adopted 
this principle, but carried it so far as to exclude the evidence of a kinsman 
in a cause between his relative and a stranger (L. Wisigoth. Lib. II. Tit. iv. 
c. 12), which was adopted into the Carlovingian legislation (Benedict. Levit. 
Capitul. Lib. vi. c. 348) under the strong Romanizing influence which then 
prevailed, The rule, once established, retained its place through the vicissi- 
tudes of the feudal and customary law (Beaumanoir, Coutumes du Beau- 
voisis, cap. xxxix. § 38. — Cout. de Bretagne, Tit. viii. art. 161, 162). 

On the other hand, the Teutonic custom is shown as still influential in the 
eleventh century, by a law in which the Emperor Henry II. directs the em- 
ployment of twelve of the nearest relations as conjurators, in default of three 
peers of the accused — "cum tribus paribus se expurget ; si autem pares 
habere non potuerit, cum duodecim propinquioribus parentibus se defendat" 
(Feudorum Lib. v. Tit. ii.). It was a settled principle in the Danish law to 
a later period. A code of the thirteenth century directs " Factum autem si 
negat, cognatorum jurejurando se tueatur" (Leg. Cimbric. Lib. n. c. 9) ; and 
in another of the thirteenth and fourteenth centuries it is even more strongly 
developed : " Si juramento cognatorum, quod dicitur neffn i kyn se non de- 
fenderit, solvat bondoni XL. marcas, et regi tantum''' (Constit. Woldemari 
Regis, § ix. also §§ 52, 56, etc.). He who had no relatives was obliged to 



NUMBER OF C0NJURAT0RS REQUIRED. 31 

custom is fairly illustrated by a case recounted by Airnoin 
as occurring under Chilperic I. in the latter half of the 
sixth century. A wife suspected by her husband offered 
the oath of purgation on the altar of St. Denis with her 
relatives, who were persuaded of her innocence ; the hus- 
band not yet satisfied, accused the compurgators of per- 
jury, and the fierce passions of both parties becoming ex- 
cited, weapons were speedily drawn, and the sanctity of the 
venerable church was profaned with blood. 1 

It was manifestly impossible, however, to enforce the rule 
of kinship in all cases, for the number of compurgators 
varied in the different codes, and in all of them a great 
number were required when the matter at stake was large, 
or the crime or criminal important. Thus when Chilperic 
I. was assassinated in 584, doubts were entertained as to 
the legitimacy of his son Clotair, an infant of four months 
— doubts which neither the character of Queen Fredegonda 
nor the manner of Chilperic's death had any tendency to 
lessen ; and Gontran, brother of the murdered king, did not 
hesitate to express his belief that the royal child's paternity 
was traceable to some one of the minions of the court — 
a belief doubtless stimulated by the promise it afforded 
him of another crown. Fredegonda, however, repaired her 
somewhat questionable reputation and secured the throne 
to her offspring, by appearing at the altar with three bishops 
and three hundred nobles, who all swore with her as to 
the legitimacy of the little prince, and no further doubts 
were ventured on the delicate subject. 3 A similar case 
occurred in Germany in 899, when Queen Uta cleared her- 

take an oath to that effect, and then he was permitted to produce twelve 
other men of proper character, lag feste men. (Ibid. § 86.) A relic of the 
same principle is shown at the same period in a provision of the municipal 
law of Southern Germany, by which a child under fourteen years of age, 
when accused of any crime, could be cleared by the purgatorial oath of the 
father (Jur. Provin. Alaman. cap clxix. § 1). 

1 Aimoini Lib. in. c. 29. 

3 Greg. Turon. Lib. vm. c. 9. 



32 THE WAGER OF LAW. 

self on an accusation of infidelity, by taking a purgatorial 
oath with eighty-two nobles. 1 So in 824, a dispute between 
Hubert, Bishop of Worcester, and the Abbey of Berkeley, 
concerning the monastery of Westbury, was settled by the 
oath of the bishop, supported by those of fifty mass-priests, 
ten deacons, and a hundred and fifty other ecclesiastics. 2 
These were, perhaps, exceptional cases, but in Wales, 
where the custom was perpetuated until the fifteenth cen- 
tury, a form of it was known under the name of assath, in 
which no less than three hundred conjurators were habitu- 
ally required. 3 

Under these circumstances, it is evidently impossible that 
a kindred sufficiently large could have been assembled in the 
most numerous families, and even when the requirements 
were more reasonable, the same difficulty must frequently 
have occurred. Among all tribes, therefore, the aid of those 
not connected by ties of blood must often have been neces- 
sary, and as it was a service not without danger, as we shall 
see hereafter, it is not easy to understand how the requisite 
number was obtained. In certain cases, no doubt, the 
possibility of obtaining those not bound by kindred to 
undertake the office is traceable to the liability which in 
some instances rested upon a township for crime com- 
mitted within its borders. 4 

1 Herman. Contract, ann. 899. 

2 Spelman. Concil. I. 335. 

3 Ou que ils vourront se excuser (de la mort dez tiels rebellez ensy tuez) 
per un assath selonque la custuuie de Gales, cest a dire, per le serment du 
ccc. homines, etc. — I. Henry V. cap. vi. (Spelman. Gloss, s. v. Assath). 

4 This has been denied by those who assume that the frit hborgs of Edward 
the Confessor are the earliest instance of such institutions, but traces of com- 
munal societies are to be found in the earliest text of the Salique law (First 
text of Pardessus, Tit. xlv.), and both Childebert and Clotair II., in edicts 
promulgated near the close of the sixth century, hold the hundreds or 
townships responsible for robberies committed within their limits (Decret. 
Childeberti ann. 595, c. 10— Decret. Chlotarii II. c. 1). 

It is not improbable that, as the family was liable for the misdeeds of its 
members among all the barbarian races, so the tribe or clan of the offender was 



NUMBER OF C0NJURAT0RS. 33 

It would be endless to specify all the variations in the 
numbers required by the different codes in all imaginable 
cases of quarrel between every class of society. A few 
generalizations may, however, be deduced from among the 
chaotic and conflicting mass of regulations which are to be 
found in the laws of the numerous races who adhered to the 
custom for so many centuries. Many elements entered into 
this ; the nature of the crime or claim, the station of the par- 
ties, the rank of the compurgators, and the mode by which 
they were selected. Thus, in the simplest and most ancient 
form, the Salique law merely specifies twenty-five compur- 
gators to be equally chosen by both parties. 1 Some for- 
mulas of Marculfus specify three freeholders and twelve 
friends of the accused. 2 A Merovingian edict of 593 directs 
the employment of three peers of the defendant, with three 
others chosen for the purpose, probably by the court. 3 
Alternative numbers, however, soon make their appearance, 
depending upon the manner in which they were chosen. 
Thus among the Alamanni, on a trial for murder, the 
accused was obliged to secure the support of twenty chosen 
men, or, if he brought such as he had selected himself, the 
number was increased to eighty. 4 So in a capitulary of 

liable when the offence was committed upon a member of another tribe, and 
such edicts as those of Childebert and Clotair were merely adaptations of the 
rule to the existing condition of society. The most perfect early code that 
has reached us, that of the ancient Irish, expresses in detail the responsibility 
of each sept for the actions not only of its members, but of those also who 
were in any way connected with it. "And because the four nearest tribes 
bear the crimes of each kinsman of their stock. . . . And because there are 
four who have an interest in every one who sues and is sued : the tribe of 
the father, the chief, the church, the tribe of the mother or foster-father. 
. . . Every tribe is liable after the absconding of a member of it, after notice, 
after warning, and after lawful waiting." — Senchus Mor. I. 263-5. 

1 First text of Pardessus, Tit. xlii. § 5. 

3 Insequentur vero post" ipso tres aloarii et duodecim conlaudantes jura- 
verunt. — Marculf. App. xxxii. ; Ibid. xxix. 

3 Pact, pro Tenore Pacis cap. vi. 

4 L. Alaman. Tit. lxxvi. So in 922 the Council of Coblentz directed that 
accusations of sacrilege could be rebutted with " XXIV totis nominatis atque 



34 THE WAGER OF LAW. 

803 Charlemagne prescribes seven chosen conjurators, or 
twelve if taken at random, 1 a rule which is virtually the 
same as that laid down by the Emperor Henry III. in the 
middle of the eleventh century. 3 

Variations likewise occur arising from the nature of the 
case and the character of the plaintiff. Thus in the Scottish 
law of the twelfth century, in a criminal charge, a man could 
defend himself against his lord with eleven men of good 
character, but if the king were the accuser, twenty-four 
were requisite, who were all to be his peers, 3 while in a civil 
case twelve were sufficient. 4 So in the burgher laws of 
David I., ordinary cases between citizens were settled with 
ten conjurators, but eleven were necessary if the k*ng were 
a party, or if the matter involved the life, limb, or lands of 
one of the contestants. 5 Instances also occur in which the 
character of the defendant regulated the number required. 
Among the Welsh, the laws of Hoel Dha .provide that a 
wife accused of infidelity could disprove a first charge with 
seven women ; if her conduct provoked a second investiga- 
tion, she had to procure fourteen ; while, on a third trial, 
fifty female conjurators were requisite for her escape. 6 In 

electis viris . . . aut aliis non nominatis tamen ingenuis LXXII." (Hartz- 
heim Concil. German. II. 600.) 

1 Capit. Car. Mag. IV. ann. 803, cap. x. 

2 Et caeteris hominibus non plus debent quam septem personas, suis vero 
sociis duodecim. — Goldast. Constit. Imp. I. 231. 

3 Quoniam Attachiamenta cap. xxiv. §§ 1, 4. In another code of nearly 
the same period, in simple cases of theft, when the accuser had no testimony 
to substantiate his claim, thirty conjurators were necessary, of whom three 
must be nobles. — Regiam Majestatem Lib. iv. c. 21. 

4 Quoniam Attachiamenta cap. lxxv. §§ 1, 4. 

5 Leg. Burgorum cap. xxiv. § 3. In cases occurring between a citizen 
and a countryman, each party had to provide conjurators of his own class. — 
Ibid. § 1. 

6 Leg. Eccles. Hoeli Dha cap. 14. — It is worthy of remark that one of the 
few directions for legal procedures contained in the Koran relates to cases 
of this kind. Chapter xxiv. 6-9 directs that a husband accusing his wife of 
infidelity, and having no witnesses to prove it, shall substantiate his assertion 
by swearing five times to the truth of the charge, invoking upon himself the 



SELECTION OF CONJURATORS. 35 

the Anglo-Saxon jurisprudence, the frangens jusjurandum, 
as it was called, grew to be an exceedingly complex system 
in the rules by which the number and quality of the conju- 
rators were regulated according to the nature of the crime 
and the rank of the accused. In cases of peculiar atrocity, 
such as a violation of the sanctity of the grave, only thanes 
were esteemed competent to appear. 1 In fact, among the 
Anglo-Saxons, the value of a man's oath was rated accord- 
ing to his rank, that of a thane, for instance, being equal 
to those of seven yeomen. 3 The same peculiarity is ob- 
servable among the Frisians, whose laws required that 
compurgators should be of the same class as their principal, 
and the lower his position in the State, the larger was the 
number requisite. 3 

Equally various were the modes adopted for the selection 
of compurgators. Among the untutored barbarians, doubt- 
less, the custom was originally universal that the defendant 
procured the requisite number of his friends, whose oaths 

malediction of God; while the wife was able to rebut the accusation by the 
same process. As this chapter, however, was revealed to the Prophet after 
he had writhed for a month under a charge brought against his favorite wife 
Ayesha, which he could not disregard and did not wish to entertain, the 
law is rather to be looked, upon as ex post facto than as indicating any 
peculiar tendency of the age or race. 

1 Wealreaf, i.e. mortuum refere, est opus nithingi; si quis hoc negare 
velit, faciet hoc cum xlviii. taynis plene nobilibus. — Leg. iEthelstani, de Or- 
dalio. 

2 Sacramentum liberalis hominis, quern quidem vocant txvelfhendeman y 
debet stare et valere juramentum septem villanorum. (Leg. Cnuti cap. 127.) 
The twelfhendeman meant a thane (Twelfhindus est homo plene nobilis i. 
Thainus. — Leg. Henrici I. Tit. lxxvi. § 4), whose price was 1200 solidi. So 
thoroughly did the structure of jurisprudence depend upon the system of 
wehrgild or composition, that the various classes of society were named 
according to the value of their heads. Thus the villein or cherleman was 
also called ttvyhindus or twyhindeman, his wehrgild being 200 solidi ; the 
radcnicht (road-knight, or mounted follower) was a sexkendeman ; and the 
comparative judicial weight of their oaths followed a similar scale of valua- 
tion, which was in force even subsequently to the Conquest. (Leg. Henrici I. 
Tit. Ixiv. § 2.) 

a L. Frision. Tit. I. 



36 THE WAGER OP LAW. 

were sufficient for his discharge. Even to a comparatively 
late period this prevailed extensively, and its evils were 
forcibly pointed out by Hincmar in the ninth century. In 
refusing to admit the purgation of an offending priest with 
ecclesiastics of his own choice, he states that evil-minded 
men combined together to defeat justice and secure immu- 
nity for their crimes by serving each other in turn, so that 
when the accused insisted on offering his companions to 
the oath, it was necessary to make them undergo the or- 
deal to prove their sincerity. 1 His expressions show that 
the question of selection at that time was undecided in 
France, and the alternative numbers alluded to above 
prove that efforts had been made to remove the difficulty 
without success. Other nations, however, met the ques- 
tion more decidedly. The original Lombard law of King 
Kotharis gave to the plaintiff the privilege of naming a 
majority of the compurgators, the remainder being chosen 
by the defendant, 3 but even in this the solidarity of the 
family was recognized, since it was the duty of the plain- 
tiff to select the nearest relatives of his adversary. 3 The 
English law was the first to educe a rational mode of trial 
from the absurdity of the Joarbaric traditions, and there it 
finally assumed a form which occasionally bears a striking 
resemblance to trial by jury — in fact, it insensibly runs into 
this latter, to which it probably gave rise. By the laws of 
Canute, in some cases, fourteen men were named to the 
defendant, among whom he was obliged to find eleven will- 
ing to take the purgatorial oath with him.* The selection 

1 Si autem denominatos a nobis sibi presbyteros ad famam suam purgan- 
dam habere nequit, et alios ad secum jurandum conduxerit, quoniam experti 
sumus quosdam ad invicein conspirasse, et repetiti mutuo in sua purgatione 
jurent, etc. — Hincmari Epist. xxxiv. So also in his Capit. Synod, ann. 852, 

II. XXV. 

2 L. Longobard. Lib. n. Tit. lv. § 5. 

3 Ibid. Tit. xxi. § 9. The plaintiff, however, was prohibited from nomi- 
nating any of the family who were personally hostile to the defendant. 

4 Nominentur ei XIV., et adquirat XL, et ipse sit duodecimus.— L. Cnuti 
c. lxvi. 



SELECTION OF CONJURATORS. 37 

of these virtual jurors was probably made by the gerefa, 
or sheriff; 1 they could be challenged for suspicion of par- 
tiality or other competent cause, 2 and were liable to rejec- 
tion unless unexceptionable in every particular. 3 Yery sim- 
ilar to this was the stockneffn of the ancient Danish law, by 
which, in cases where the relatives were not called upon, 
thirteen men were chosen, a majority of whom could clear 
the accused by taking the oath with him. They were nom- 
inated by a person appointed for the purpose, and if the 
court neglected this duty, the privilege enured to the plain- 
tiff. 1 

The Northern nations were evidently less disposed to 
favor the accused than the Southern. In Sweden and 
Denmark, another regulation provides that although the 
defendant had a right to demand this mode of purgation, 
yet the plaintiff had the selection of the twelve men who 
served as conjurators ; three of these the accused could 
challenge for enmity, but their places were supplied by the 
plaintiff. 5 The evanescent code compiled for Norway and' 
Iceland by Haco Haconsen towards the close of the thir- 
teenth century is more equitable in its provisions. Though 
it leaves the nomination of the conjurators to the defendant, 
the choice is subject to limitations which placed it virtually 
in the power of the court. They were required to be men 
of the vicinage, of good repute, peers of the accused, and 
in no way connected with him by blood or other ties. 6 

Such care in the selection of those on whom duties 

1 Laws of Ethelred, Tit. in. c. xiii. 
' J L. Henrici I. Tit. xxxi. § 8. 

3 Ibid. Tit. lxvi. § 10. 

4 Constit. Woldemari Regis, §§ Hi. lxxii. 

6 L. Scania; Lib. vii. c. 8. — Chart. Woldemari Regis, ann. 1163. (Du 
Cange s. v. Juramentum.) 

6 Ejusdem ae ipse dignitatis, proxume habitantes, et hujus rei maxime 
gnari, nee affinitatis nee intercedentium cansarum vinculo cum reo conjunct]*, 
adulta; setatis ac judicii, nee in antecessum aut perjurii aut falsi testimonii 
nota infaines. — Jarnsida, Thiofa-Balkr, cap. ix. x. 
4 



38 THE WAGER OF LAW. 

so responsible devolved did not prevail among the more 
Southern races at an earlier age. Among the Lombards, 
slaves and women in tutelage were often employed. 1 The 
Burgundians required that the wife and children, or, in 
their absence, the father and mother of the accused should 
assist in making up the number of twelve, 3 and the idle 
nature of the ceremony under such regulations is shown 
by its prohibition under Charlemagne for the reason that 
it led to the swearing of children of tender and irrespon- 
sible age. 3 That legislator, however, contented himself 
with forbidding those who had once been convicted of per- 
jury from again appearing either as witnesses or conjura- 
tors ;* and the little care that was deemed necessary in their 
selection is shown by a law of Louis-le-Debonnaire ordering 
that landless freemen should be allowed to serve as con- 
jurators, though ineligible as witnesses. 5 A truer concep- 
tion of the course of justice is manifested, some centuries 
later, by the Bearnese legislation, which required that the 
seguidors or conjurators should be men able to pay the 
amount at stake, together with the fine incurred by the 
losing party, 6 or that they should be fair and loyal men, 
not swayed by enmity. 7 

Yariations are likewise observable in the form of admin- 
istering the oath. Among the Alamanni, for instance, the 
compurgators laid their hands upon the altar, and the 
principal placed his hand over the others, repeating the 
oath alone ; 8 while among the Lombards, a law of the Em- 
peror Lothair directs that each shall take the oath sepa- 
rately. 9 It was always, however, administered in a conse- 

1 L. Longobard. i. xxxiii. 1, 3. 3 L. Burgund. Tit. viii. 

3 Capit. Car. Mag. i. aim. 789 c. Ixii. 4 Ibid. 

s Capit. Ludov. Pii ann. 829 Tit. in. § vi. 

G For de Morlaas, Rubr. xli. art. 146-7. The same capacity was required 
of the testimonis or witnesses. 

7 Que sien boos et loyaus, et que no sien enemicxs. — Fors de Beam, Rubr. 

XXX. 

8 L. Alaman. Tit. vi. 9 L. Longobard. Lib. n. Tit. Iv. § 28. 



VALUE OF COMPURGATION. 39 

crated place, before delegates appointed by the judges 
trying the cause, sometimes on the altar and sometimes on 
relics. A formula of Marculfus specifies the Capella S. 
Martini, or cope of St. Martin, 1 one of the most venerated 
relics of the royal chapel, whence we may perhaps conclude 
that it was habitually used for that purpose in the business 
of the royal Court of Appeals. 

There has been much discussion as to the exact nature 
and legal weight of this mode of establishing innocence or 
vindicating disputed rights. Some authors assume that in 
the early period, before the ferocious purity of the German 
character had become adulterated with the remains of Ro- 
man civilization, it was used in all descriptions of cases, 
at the option of the defendant, and was in itself a full and 
satisfactory proof, received on all hands as equal to' any 
other. 3 The only indication that I have met with tending 
to the support of such a conjecture occurs in the Lombard 
code, where Rotharis, the earliest compiler of written laws, 
abolishes a previously existing privilege of denying under 
oath a crime after it had been confessed. 3 A much more 
powerful argument on the other side, however, is derivable 
from the earliest text of the Salique law, to which reference 
has already been made. In this, the formula shows clearly 
that conjurators were only employed in default of other 
testimony ; 4 and what lends additional force to the conclu- 

1 Marculf. Lib. I. Formul. xxxviii. 

2 Kb'nigswarter, Etudes Historiques, p. 167. 

3 Nam nulli liceat, postquam manifestaverit, postea per sacramentum 
negare, quod non sit culpabilis, postquam ille se culpabilem assignavit. 
Quiamultos cognovimus in regno'nostro tales pravas opponentes intentiones, 
et boec moverunt nos praesentem corrigere legem, et ad meliorem statum 
revocare. — L. Longobard. Lib. n. Tit. lv. § 8. 

4 Si quis hominem ingenuo plagiaverit et probatio certa non fuit, sicut 
pro occiso juratore donet. Si juratores non potuerit invenire, VIII M dina- 
rios, qui faciunt solidos CC, culpabilis judicetur. — Tit. xxxix. § 2. A simi- 
lar provision — "si tamen probatio certa non fuerit" — occurs in Tit. xlii. § 5. 



40 THE WAGER OP IAW. 

sion is that this direction disappears in subsequent revisions 
of the law, wherein the influences of Christianity and of 
Roman civilization are fully apparent. No safe deduc- 
tions, indeed, can be drawn from mere omissions to specify 
that the absence of witnesses was necessary, for these ancient 
codes are drawn up in the rudest possible manner, and 
regulations which might safely be presumed to be familiar 
to every one would not be repeated in their curt and bar- 
barous sentences with the careful redundancy of verbiage 
which marks our modern statutes. Thus there is a passage 
in the code of the Alamanni which declares in the most 
absolute form that if a man commits a murder and desires 
to deny it, he can clear himself with twelve conj vrators. 1 
This, by itself, would authorize the assumption that com- 
purgation was allowed to override the clearest and most 
convincing testimony, yet it is merely a careless form of 
expression, for another section of the same code expressly 
provides that where a fact is proved by competent witnesses 
the defendant shall not have the privilege of producing 
compurgators. 3 

It therefore seems to me evident that, even in the earliest 
times, this mode of proof was only an expedient resorted 
to in cases of doubt, and on the necessity of its use the 
rachinborgs or judges probabty decided. That it was so 
in subsequent times is generally admitted. It is scarcely 
worth while to multiply proof; but a few references will 
show the light in which the custom was regarded. 3 

1 Si quis hominem occiderit et negare voluerit, cum duodechn nominatis 
juret. — L. Alaman. Tit. lxxxix. 

3 Ibid. Tit. xlii. 

3 For instance, in the Baioarian law — "Nee facile ad sacramenta veniatur 
... In his vero causis sacramenta praestentur in quibus nullam probationem 
discussio judicantis invenerit." (L. Baioar. Tit. vin. c. 16*.) In a Capitu- 
lary of Louis-le-Debonnaire, — " Si hujus facti testes non habuerit cum duo- 
deciin conjuratoribus legitimis per sacramentum adfirmet." (Capit. Ludov. 
Pii ann. 819 § 1). In one of the Emperor Lothair, — " Si testes habere non 
poterit, concedimus ut cum XII. juratoribus juret." (L. Longobard. Lib. i. 



SEPULCHRAL OATHS. 41 

Confidence in its ability to supplement absent or deficient 
testimony was manifested in a singular form — the jura- 
mentum supermortuum — which was employed by various 
races, at wide intervals of time. Thus, in the earliest legis- 
lation of the Anglo-Saxons, we find that when the defendant 
or an important witness was dead, the oath which he would 
have taken or the deposition which he would have made 
was obtained by proceeding to his tomb, where a certain 
number of conjurators swore as to what he could or would 
have done if alive. 1 Two centuries later, the same custom 
is alluded to in the Welsh laws of Hoel Dha, 2 and even as 
late as the thirteenth century it was still in force in Southern 
Germany. 3 

Tit. ix. § 37.) So Louis II., in 854, ordered that aman accused of harboring 
robbers, if taken in the act, was to be immediately punished, but if merely 
cited on popular rumor, he was at liberty to clear himself with twelve com- 
purgators. (Recess. Ticinen. Tit. n. cap. 3.) 

It was the same in subsequent periods. The Scottish law of the twelfth 
century alludes to the absence of testimony as a necessary preliminary, but 
when an acquittal was once obtained in this manner, the accused seems to 
have been free from all subsequent proceedings, when inconvenient witnesses 
might perhaps turn up — " Et si hoc modo purgatus fuerit, absolvetur a pe- 
titione Regis in posterum." (Regiam Majestatem, Lib. iv. c. 21.) So, in 
the laws of Nieuport, granted by Philip of Alsace, Count of Flanders, in 
1163. "Et si hoc scabini vel opidani non cognoverint, conquerens cum 
juramento querelam suam sequetur, et alter se excusabit juramento quinque 
hominum." (Leg. secundae Noviportus.) The legislation of Norway and Ice- 
land in the next century is even more positive. " lis tantum concessis quse 
legum codices sanciunt, juramenta nempe purgatoria et accusatoria, ubi 
legitimi defuerint testes." (Jarnsida, Mannhelge, cap. xxxvii.) 

On the other hand, an exception to this general principle is apparently 
found in a constitution of the Emperor Henry III., issued about the middle 
of the eleventh century " Si quern ex his dominus suus accusaverit de qua- 
cunque re, licet illi juramento se cum suis cosequalibus absolvere, exceptis 
tribus : hoc est si in vitam domini sui, autin cameram ejus consilium habuisse 
arguitur, aut in munitiones ejus. Caeteris vero hominibus de quacunque 
objectione, absque advocato. cum suis coaequalibus juramento se poterit ab- 
solvere." (Goldast. Constit. Imp. I. 231.) 

1 Dooms of Ine, cap. liii. " Leg. Eccles. Hoeli Dha c. 27 

3 Ea autem debita de quibus non constat, super mortuum probari debent, 
septima manu. — Jur. Provin. Alaman. cap. vii. § 3. 

4* 



42 THE WAGER OF LAW. 

Iii such cases as these, there could be no doubt as to the 
absence of testimon}^ but legal complications are too vari- 
ous and perplexing to render all questions so easy of solu- 
tion, nor can we expect to find, in the simplicity of primitive 
laws, elaborate general directions that may guide us in any 
attempt to investigate thoroughly the principles which the 
untutored barbarian may have applied to determine the ad- 
missibility of this kind of evidence. That they were not 
always such as would appear rational to us of the nineteenth 
century may safely be assumed. The laws of Hoel Dha re- 
quired, for instance, that compurgation should be allowed 
only in cases of uncertainty, 1 yet how latitudinarian was the 
definition of uncertainty, and how great was the benefit of 
the doubt interpreted in favor of the criminal, is shown by 
its application to parties taken in adultery, flagrante, de- 
lictu, who were allowed to escape on the production of fifty 
men to take the oath with the male culprit, and fifty women 
with the female, 2 though what was the verdict when the one 
was successful and the other partner in guilt failed, does 
not appear. 

The employment of compurgators also depended fre- 
quently upon the degree of crime alleged, or the amount at 
stake. Thus, in many codes, trivial offences or small claims 
were disposed of by the single oath of the defendant, while 
more important cases required compurgators, whose num- 
bers increased with the magnitude of the matter in question. 
This principle is fairly illustrated in a charter granted to 
the Yenetians in the year 1111 by Henry Y. In suits which 
amounted only to a silver pound, the oath of the party was 

1 L. Eccles. c. 8. Et hoc tamen sit incertum. 

2 The crudity of this regulation is almost incredible. — "Et tribus de causis 
datur tale juramentum. Si videatur mulier veniens de luco de una parte, 
et vir veniens de altero parte ejusdem luci in eadem hora, vel si videantur 
insimul jacentes sub uno pallio, vel si videatur vir inter femora mulieris." 
(Ibid. cap. 17.) Perhaps this may be attributable to the looseness of the 
marriage tie among the Welsh of the period. 



FORMULA OF OATH. 43 

sufficient ; but if the claim amounted to twelve pounds or 
more, then twelve chosen men were requisite to substantiate 
the oath of negation. 1 

In later times, compurgation was also sometimes used as 
an alternative when circumstances prevented the employ- 
ment of other popular modes of deciding doubtful cases. 
Those, for instance, who would ordinarily be required to 
defend themselves by the wager of battle, were permitted 
by some codes to substitute the oaths of a certain number 
of conjurators, when precluded by advanced age from ap- 
pearing in the arena. The burgher law of Scotland affords 
an example of this, 3 though elsewhere such cases were 
usually settled by the substitution of champions. 

The primitive law-givers were too chary of words in their 
skeleton codes to embody the formula usually employed 
for the compurgatorial oath. We have therefore no posi- 
tive evidence of its nature in the earliest times ; but as the 
forms made use of by several races at a somewhat later 
period have been preserved, and as they resemble each 
other in all essential respects, we may reasonably assume 
that little variation had previously occurred. The most 
ancient that I have met with occurs in an Anglo-Saxon 
formulary which is supposed to date from about A.D. 900: 
"By the Lord, the oath is clean and unperjured which N. 
has sworn." 3 A century later, in a compilation of the 
Lombard law, it appears : " That which the accused has 
sworn is true, so help me God." 4 The form specified in 
Beam, at a period somewhat subsequent, is curt and deci- 

1 Lunig Cod. Ital. Diplom. II. 1955. 

2 Si burgensis calumniatus praeteriit setatem pugnandi, et hoc essoniaverit 
in sua responsione, non pugnabit. Sed juramento duodecim talium qualis 
ipse fuerit, se purgabit. — L. Burgorum cap. 24 §§ 1, 2. 

3 On bone Drihten se a5 is claene and untnaene \>e N. swor. — Thorpe's An- 
cient Laws, I. 180-1. 

4 Hoc quod appellatus juravit, verum juravit. Sic Deus, etc. — Forniul." 
Vet. in L. Langobard. (Georgisch, 1275-6.) 



44 THE WAGER 0? LAW. 

sive: "By these saints, he tells the truth;" 1 while the code 
in force in Normandy until the sixteenth century directs 
an oath identical in spirit : " The oath which William has 
sworn is true, so help me God and his saints." 2 It will be 
observed that all these, while essentially distinct from the 
oath of a witness, are still unqualified assertions of the 
truth of the principal, and not mere asseverations of belief 
or protestations of confidence. The earliest departure from 
this positive affirmation, in secular jurisprudence, occurs 
in the unsuccessful attempt at legislation for Norwa}^ and 
Iceland by Haco Haconsen in the thirteenth century. In 
this, the impropriety of such oaths is pointed out, and it is 
directed that in future the compurgator shall sw$ar only, 
in confirmation of his principal, that he knows nothing to 
the contrary. 3 

We shall see that before the custom fell into total disuse, 
the change which Haco vainly attempted for his subjects 
came to be generally adopted, in consequence, principally, 
of the example set by the church. Even before this was 
formally promulgated by the Popes, however, ecclesiastics 
occasionally showed that they were more careful as to what 
they swore, and at a comparatively early period they intro- 
duced the form of merely asserting their belief in the oath 
taken by their principal. Thus, in 1101, we find two bishops 

1 Per aquetz santz ver dits. — Fors de Beam, Rubr. Li. art. 165. 

2 Du serment que Guillaume a jure, sauf serment a jure, ainsi m'aist Dieu 
et ses Sainctz. — Ancienne Cout. de Normandie, chap. Ixxxv. (Bourdot de 
Richebourg, IV. 54.) 

3 Nobis adhaac Deo coram periculosum esse videtur, ejus, cujus interest, 
jusjurandum purgatorium edendo praeeunte, omnes (ab eo producti testes) 
iisdem ac ille conceptis verbis jurare, incerti quamvis fuerint, vera ne an 
falsa jurent. Nos legibus illatum volumus ut ille, cujus interest, jusjuran- 
dum conceptis verbis solum prsestet, caeteri vero ejus firment jusjurandum 
adjicientes se nequid verius, Deo coram, scire, quam jurassent. — Jarnsida, 
Mannhelge, cap. xxxvii. — The passage is curious, as showing how little con- 

"fidence was really felt in the purgation, notwithstanding the weight attaching 
to it by law. 



WANT OF CONFIDENCE. 45 

endeavoring to relieve a brother prelate from a charge of 
simony, and their compurgatorial oath ventures no further 
than " I believe that Norgaud, Bishop of Autun, has sworn 
the truth. So help me God." 1 

Notwithstanding the universality of the custom, and the 
absolute character of the decisions reached by the process, 
it is easy to discern that the confidence reposed in it was 
of a very qualified character, even at an early period. The 
primitive law of the Frisians describes some whimsical 
proceedings, prescribed for the purpose of determining the 
responsibility for a homicide committed in a crowd. The 
accuser was at liberty to select seven from among the par- 
ticipants of the brawl, and each of these was obliged to 
deny the crime with twelve conjurators. This did not 
absolve them, however, for each of them was also indivi- 
dually subjected to the ordeal, which finally decided as to 
his guilt or innocence. In this, the value of the com- 
purgation was reduced to that of the merest technical cere- 
mony, and yet a failure to procure the requisite number 
of supporters was tantamount to a conviction, while, to 
crown the absurdity of the whole, if any one succumbed in 
the ordeal, his conjurators were punished as perjurers. 3 A 
similar want of confidence in the principle involved is shown 
by a reference in the Anglo-Saxon laws to the conjurators 
of an accused party being out sworn (overcythed), when 
recourse was likewise had to the ordeal. 3 As regards the 
church, although the authoritative use of compurgation 
among ecclesiastics would seem to demand for it among 
them implicit faith in its results, yet we have already 
seen that in the ninth century, Hincmar did not hesitate 
to require that in certain cases it should be confirmed 
by the ordeal ; and two centuries later, a remark of Ivo 

1 Credo Norigaudum istum Eduensem episcopum vera jurasse, sicut me 
Deus adjuvet. — Hugo, Flaviniac. Lib. II. 
"- L. Frisionum Tit. xiv. 
a Dooms of King Edward., cap. iii. 



46 THE WAGER OF LAW. 

of Chart res implies a strong degree of doubt as to its 
efficacy. In relating that Sanctio, Bishop elect of Orleans, 
when accused of simony by a disappointed rival, took the 
oath of negation with seven compurgators, he adds that 
the accused thus cleared himself as far as he could in 
the eyes of man. 1 That the advantages it offered to the 
accused were duly appreciated, both by criminals and 
judges, is evident from the case of Manasses, Archbishop 
of Rheims. Charged with simony and other offences, after 
numerous tergiversations he was finally summoned for 
trial before the Council of Lyons, in 1080. As a last effort 
to escape the impending doom, he secretly offered to Bishop 
Hugh, the Papal legate, the enormous sum of two hundred 
ounces of gold and other presents in hand, besides equally 
liberal prospective payments, if he could obtain the privi- 
lege of compurgation with six suffragan bishops. Gregory 
YII. was then waging too uncompromising a war with the 
corroding abuse of simony for his lieutenant to yield to 
any bribe, however dazzling; the proffer was spurned, 
Manasses confessed his guilt by absence, and was accord- 
ingly deposed. 2 

The comparative value attached to the oaths of conjura- 
tors is illustrated by the provisions which are occasionally 
met with, regulating the cases in which they were employed 
in default of witnesses, or in opposition to them. Thus, 
in the Baioarian law, the oath of one competent witness is 
considered to outweigh those of six conjurators ; 3 and 
among the Lombards, an accusation of murder which could 
be met with three witnesses required twelve conjurators as 
a substitute. 4 

It is thus evident that conjurators were in no sense wit- 
nesses, that they were not expected to give testimony, and 
that they merely expressed their confidence in the veracity 

1 Quantum in conspectu hominum purgari poterat. — Ivon. Epist. liv. 

3 Hugo.Flaviniac. Lib. n. 3 L. Baioar. Tit. xiv. cap i. § 2. 

4 L. Longobard. Lib. i. Tit. ix. § 37. 



LIABILITY Or CONJURATORS. 47 

of their principal. It therefore at first sight appears some- 
what unreasonable that they should have been held guilty 
of perjury and subject to its penalties in case of unluckily 
sustaining the wrong side of a cause. It is probably ow- 
ing to this inconsistency that some writers have denied 
that they were involved in the guilt of their principal, and 
among others the learned Meyer has fallen into this error. 1 
The proof, however, is too clear for dispute. We have 
already seen that the oath was an unqualified assertion of 
the justice of the side espoused, without reservation that 
would enable the compurgator to escape the charge of 
false swearing, and one or two allusions have been made 
to the punishments inflicted on them when subsequently 
convicted of mistake. The code of the Alamanni recog- 
nized the guilt involved in such cases when it denied the 
privilege of compurgation to any one who had previously 
been more than once convicted of crime, giving as a reason 
the desire to save innocent persons from incurring the sin 
of perjury. 2 Similar evidence is derived from a regulation 
promulgated by King Luitprand in the Lombard law, by 
which a man nominated as a conjurator, and declining to 
serve, was obliged to swear that he dared not take the oath 
for fear of his soul. 3 A case in point occurs in the life of 
St. Boniface, whose fellow-laborer Adalger left his property 
to the church. His graceless brothers disputed the bequest, 
and offered to make good their claim to the estate by the 
requisite number of oaths. The holy man ordered them 
to swear alone, in order not to be concerned in the destruc- 
tion of their conjurators, and on their unsupported oaths 
gave up the property. 4 

1 Institutions Judiciaires, I. 317 (Pardessus). 

2 Ut propter suam nequitiam alii qui volunt Dei esse non se perjurent, 
nee propter culpam alienam semetipsos perdant.— L. Alaman.. Tit. xlii. § 1. 

3 Quod pro aniraa sua timendo, non prsesumat sacramentalis esse. — L. 
Longobard. Lib. n. Tit. lv. § 14. 

4 Othlon. Vit. S. Bonif. Lib. n. c. xxi. — " Vos soli juratis, si vultis: nolo 
ut omnes hos congregatos perdatis." — Boniface, however, did not weakly 



43 THE WAGER OF LAW. 

The law had no hesitation in visiting such cases with 
the penalties reserved for perjury. By the Salique code 
unlucky compurgators were heavily fined. 1 Among the 
Frisians, they had to buy themselves off from punishment 
by the amount of their wehrgild— the value set upon their 
heads. 3 A slight relaxation of this severity is manifested 
in a constitution of Pepin, King of Italy, by which they 
were punished with the loss of a hand — the immemorial 
penalty of perjury — unless they could establish, by under- 
going the ordeal, that they had taken the oath in ignorance 
of the facts. 3 This regulation is a tacit disavowal of the 
fundamental idea upon which the whole system was erected, 
but it was only a temporary edict, and had no permanent 
effect. Even as late as the close of the twelfth century, we 
find Celestin III. ordering the employment of conjurators 
in a class of cases about the facts of which they could not 
possibly know anything, and decreeing that if the event 
proved them to be in error, they were to be punished for 
perjury. 4 That such liability was fully recognized at this 
period is shown by the argument of Aliprandus of Milan, 
a celebrated contemporary legist, who, in maintaining the 
position that an ordinary witness committing perjury must 
always lose his hand, without the privilege of redeeming 
it, adds that no witness can perjure himself unintentionally ; 
but that conjurators may do so either knowingly or un- 
knowingly, that they are therefore entitled to the benefit 
of the doubt, and if not wittingly guilty, they should have 
the privilege of redeeming their hands. 



5 



abandon the cause of the church. He freely invoked curses on the greedy 
brethren, which being fulfilled on the elder, the terror-stricken survivor 
gladly relinquished the dangerous inheritance. 

1 L. Salic. Tit. i. §§ 3, 4. 

2 L. Frisionum Tit. x. 

3 Capit. Pippini ann. 793, § 15. — Capit. Car. Mag. incert. anni c. x. (Hartz- 
heimConcil. German. I. 426.) 

4 Celest. III. ad Brugnain Episc. (Baluz. et Mansi, III. 382.) 

5 Cod. Vatican. No. 3845, Gloss, ad L. 2 Lombard, u. 51, apud Savigny, 



SAFEGUARDS OP THE SYSTEM 49 

All this seems in the highest degree irrational, yet in 
criticizing the hardships to which innocent conjnrators 
were thus exposed, it should be borne in mind that the 
whole system was a solecism. In its origin, it was sim- 
ply summoning the kinsmen together to bear the brunt of 
the court, as they were bound to do that of battle ; and 
as they were liable for a portion of the fine which was the 
penalty of all crimes — personal punishments for freemen 
being unknown — they could well afford to incur the risk of 
paying for perjury in order to avoid the assessment to be 
levied upon them in case of the conviction of their relative. 
In subsequent periods, when this family responsibility be- 
came weakened or disused, and the progress of civilization 
rendered the interests of society more complex, the custom 
could only be retained by rendering the office one not to be 
lightly undertaken. A man who was endeavoring to defend 
himself from a probable charge of murder, or who desired 
to confirm his possession of an estate against a competitor 
with a fair show of title, was expected to produce guaranties 
that would carry conviction to the minds of impartial men. 
As long as the practice existed, it was therefore necessary 
to invest it with every solemnity, and to guard it with 
penalties that would obviate some of its disadvantages. 

Accordingly, we find that it was not always a matter of 
course for a man to clear himself in this manner. The 
ancient codes have frequent provisions for the fine incurred 
by those unable to procure the requisite number of com- 
purgators, showing that it was an occurrence constantly 
kept in mind by legislators. Nor was it only landless and 
friendless men who were exposed to such failures. In '194, 
a certain Bishop Peter was condemned by the Synod of 
Frankfort to clear himself, with two or three conjurators, of 
the suspicion of being involved in a conspiracy against 

Geschichte d. Rom. Recht. B. iv.— I owe this reference to the kindness of 
my friend J. G. Rosengarten, Esq. 

5 



50 THE WAGER OF LAW. 

Charlemagne, and, small as was the number, he was unable 
to procure them. 1 So, in the year 1100, when the canons 
of Autun, at the Council of Poitiers, accused their bishop, 
Norgaud, of simony and other irregular practices, and he 
proposed to absolve himself with the compurgatorial oaths 
of the Archbishop of Tours and the Bishop of Redon, the 
canons went privately to those prelates and threatened 
that in such event they would bring an accusation of per- 
jury and prove it by the ordeal of fire, whereupon the 
would-be conjurators wisely abandoned their intention, and 
Norgaud was suspended. 3 The most rigid compliance with 
the requisitions of the law was exacted. Thus the laws of 
Meuport, in 1163, provide a heavy penalty, and. in addi- 
tion, pronounce condemnation when a single one of the 
conjurators declines the oath. 3 

No regulations, however, could be more than a slight 
palliation of a system so vicious in its fundamental prin- 
ciples, and efforts were made for its abrogation or limitation 
at a comparatively early period. In 983, a constitution of 
Otho II. abolished it in cases of contested estates, and 
substituted the wager of battle, on account of the enormous 
perjury which it occasioned.* In England, a more sweeping 
denunciation, declaring its abolition and replacing it with 
the vulgar ordeal, is found in the confused and contradic- 
tory compilation known as the laws of Henry I. 5 

1 Capit. Car. Mag. arm. 794 § 7. 

2 Hugo. Flaviniac. Lib. n. ann. 1100. Norgaud, however, was reinstated 
next year by quietly procuring, as we have already seen, two brother prelates 
to take the oath with him, in the absence of his antagonists. 

3 Et si quis de quinque juvantibus defecerit, accusatus debet tres libras, 
et percusso decern solidos. — Leg. Second. Noviportus (Oudegherst). 

4 L. Longobard. Lib. u. Tit. lv. § 34. — Qua ex re mos detestabilis in 
Italia, improbusque non imitandus inolevit, ut sub legum specie jurejurando 
acquireret, qui Deum non timendo minime formidaret perjurare. 

5 L. Henrici I. cap. lxiv. § 1. " Malorurn autem infestacionibus et perju- 
rancium conspiracione, depositum est frangens juramentum, ut magis Dei 
judicium ab accusatis eligatur j et unde accusatus cum una decima se pur- 



CONTINUED POPULAR CONFIDENCE. 51 

We have already seen, from instances of later date, how 
little influence these efforts had in eradicating a custom 
so deeply rooted in the ancestral prejudices of all the Euro- 
pean races. The hold which it continued to enjoy on the 
popular confidence is well illustrated in a little ballad by 
Audefroi-le-Batard, a renowned trouvere of the twelfth 
century. 

LA BELLE EREMBORS. 1 

"Quand vient en mai, que Ton dit as Ions jors," etc. 

In the long bright days of spring-time, 

In the month of blooming May, 
The Franks from royal council-field 

All homeward wend their way. 
Rinaldo leads them onward 

Past Erembors' gray tower, 
But turns away, nor deigns to look 

Up to the maiden's bower. 

Ah, dear Rinaldo ! 

Full in her turret window 

Fair Erembors is sitting, 
The lovelorn tales of knights and dames 

In many a color knitting. 
She sees the Franks pass onward, 

Rinaldo at their head, 
And fain would clear the slanderous tale 

That evil tongues have spread. 

Ah, dear Rinaldo ! 

"Sir knight, I well remember 

When you had grieved to see 
The castle of old Erembors 

Without a smile from me." 

garet per eleccionem et sortem, si ad judicium fevri calidi vadat." This can- 
not be considered, however, as having abrogated it even temporarily in Eng- 
land, since it is contradicted by many other laws in the same code, which 
prescribe the use of compurgators. 

1 Le Roux de Lincy, Chants Historiques Francnis, I. 15. 



52 THE WAGER OF LAW. 

" Your vows are broken, princess, 

Your faith is light as air, 
Your love another's, and of mine 

You have nor reck nor care." 

Ah, dear Rinaldo ! 

" Sir knight, my faith unbroken, 

On relics I will swear ; 
A hundred maids and thirty dames 

With me the oath shall share. 
I 've never loved another, 

From stain my vows are free. 
If this content your doubts and fears, 

You shall have kisses three." 

Ah, dear Rinaldo ! 

Rinaldo mounts the staircase, 

A goodly knight, I ween, 
With shoulders broad, and slender waist, 

Fair hair and blue eyes keen. 
Earth holds no youth more gifted 

In every knightly measure ; 
When Erembors beholds him, 

She weeps with very pleasure. 

Ah, dear Rinaldo ! 

Rinaldo in the turret 

Upon a couch reposes, 
Where deftly limned are mimic wreaths 

Of violets and of roses. 
Fair Erembors beside him 

Sits clasped in loving hold, 
And in their eyes and lips they find 

The love they vowed of old ! 

Ah, dear Rinaldo ! 

In England, owing probably to the influence of the jury- 
trial, the custom seems to have lost its importance earlier 
than elsewhere. Towards the close of the twelfth century, 
Glanville compiled his excellent little treatise " De legibus 
Anglise," the first satisfactory body of legal procedure 
which the history of mediaeval jurisprudence affords. Com- 



ENGLAND. . 53 

plete as this is in all the forms of prosecution and defence, 
the allusions to coujurators are so slight as to show that 
already they constituted an infinitesimal part of legal 
machinery, and that they were emplo3^ed rather on collat- 
eral points than on main questions. Thus a defendant who 
desired to deny the serving of a writ could swear to its non- 
reception with twelve conjurators ; 4 and a party to a suit, 
who had made an unfortunate statement or admission in 
court, could deny it by bringing forward two to swear with 
him against the united recollections and records of the 
whole court. 2 The custom, however, still continued in use. 
In 1194, when Richard I. undertook, after his liberation, to 
bring about a reconciliation between his chancellor, William 
Bishop of Ely, and the Archbishop of York, one of the con- 
ditions was that the chancellor should swear with a hundred 
priestly compurgators that he had neither caused nor de- 
sired the arrest of the archbishop. 3 In the next century, 
Bracton alludes to the employment of conjurators in cases 
of disputed feudal service between a lord and his vassal, 
wherein the utmost exactness was rigidly required both as 

1 Glanville, Lib. i. cap. ix. Also, Lib. i. c. xvi., Lib. ix. c. i., Lib. x. 
c. v. 

3 " In aliis enim curiis si quis aliquid dixerit unde eum poenituerit, poterit id 
negare contra totam curiam tertia manu cum sacramento, id se non dixisse 
amrmando." — (Ibid. Lib. viii. c. ix.) — In some other systems of jurispru- 
dence, this unsophisticated mode of avoiding justice was obtained by insist- 
ing on the employment of lawyers, whose assertions would not be binding 
on their clients. Thus in the Assises de Jerusalem (Baisse Court, cap. 133): 
"Et porce il deit estre lavantparlier, car se lavantparlier dit parole quil ne 
doit dire por celuy ci cui il parole, celui por qui il parle et son conceau y 
pueent bien amender ains que le iugement soit dit. Mais se celuy de cui 
est li plais diseit parole qui li deust torner a damage, il ne la puest torner 
arieres puis quil la dite." The same caution is recommended in the German 
procedure of the fourteenth century — "verbis procurators non eris adstric- 
tns, et sic vitabis damnum." — (Richstich Landrecht, cap. II.) The same 
abuse existed in France, but was restricted by St. Louis, who made the as- 
sertion of the advocate binding on the principal, unless contradicted on the 
spot. — (Etablissements, Liv. n. chap, xiv.) 

y Roger de Hoveden, ann. 1194. 



54 THE WAGER OF LAW. 

to the number and fitness of the conjurators, 1 and we shall 
see that no formal abrogation of it took place until the nine- 
teenth century. 

Soon after the time of Glanville, however, the system re- 
ceived a severe shock from its most important patron, the 
church. As stated above, in proceedings between ecclesias- 
tics, it was everywhere received as the appropriate mode of 
deciding doubtful cases. Innocent III. himself, who did so 
much to abrogate the kindred absurdity of the ordeal, con- 
tinued to prescribe its use in cases of the highest moment 
involving dignitaries of lofty station ; though, sensible of the 
abuses to which it led, he was careful in demanding conjura- 
tors of good character, whose' intimacy with the accused 
would give weight to their oaths. 3 At the same time, in 
endeavoring to remove one of the objections to its use, he 
in reality destroyed one of its principal titles to respect. 
He decreed that compurgators should only be obliged to 
swear to their belief in the truth of their principal's oath, 3 
and thus he attacked the very foundation of the practice, 
and gave a powerful impulse to the tendency of the times no 
longer to consider the compurgator as sharing the guilt or 
innocence of the accused. Such an innovation could only 
be regarded as withdrawing the guarantee which had imme- 
morially existed. To recognize it as a legal precept was to 
deprive the proceeding of its solemnity and to render it no 
longer a security worthy the confidence of the people or 
sufficient to occupy the attention of a court of justice. 

1 Tunc vadabit defendens legem se duodecima manu. — Bracton. Lib. 
in. Tract, iii. cap. 37 § 1. — Et si ad diem legis faciendse defuerit aliquis de 
XII. vel si contra prsedictos excipi possit quod non sunt idonei ad legem 
faciendam, eo quod villani sunt vel alias idonei minus, tunc dominus incidet 
in misericordiam. — Ibid. § 3. So also in Lib. v. Tract, v. cap. xiii. § 3. 

2 Can. vii. Extra, v. 34. 

3 Illi qui ad purgandam alicujus infamiam inducuntur, ad solum tenentur 
juramento firmare quod veritatem credunt eum dicere qui purgatur. — Can. 
xiii. Extra, v. 34. Innocent also endeavored to put an end to the abuse 
by which ecclesiastics, notoriously guilty, were able to escape the penalty 
due their crimes, by this easy mode of purgation. — Can. xv. eod. loc. 



INFLUENCE OF ROMAN LAW. 55 

In the confusion arising from the long and varying con- 
test as to the boundaries of civil and ecclesiastical juris- 
diction, it is not easy to determine the exact authority 
which this decretal may have exercised directly in secular 
jurisprudence. We have seen above that the ancient form 
of absolute oath was still employed without change, until 
long after this period, but the moral effect of so decided a 
declaration from the head of the Christian church could not 
but be great. Another influence, not less potential, was also 
at work. The revival of the study of the Roman juris- 
prudence, dating from about the middle of the twelfth cen- 
tury, soon began to exhibit the results which were to work 
so profound a change in the legal maxims and principles 
of half of Europe. 1 The criminal procedure of the barba- 
rians had rested to a great degree on the system of negative 
proofs. In the absence of positive evidence of guilt, and 
sometimes in despite of it, the accused was bound to clear 
himself by compurgation or by the ordeal. The cooler and 
less impassioned justice of the Roman law saw clearly the 

1 The rapidity with which the study of the civil law diffused itself through- 
out the schools and the eagerness with which it was welcomed are well illus- 
trated by the complaints of Griraldus Cambrensis before the end of the twelfth 
century. The highest of high churchmen, in deploring the decline of learn- 
ing among the prelates and clergy of his age, he attributes it to the exclusive 
attention bestowed on the jurisprudence of Justinian, which already offered 
the surest prizes to cupidity and ambition, and he quotes in support of his 
opinion the dictum of his teacher Mainier, a professor in the University of 
Paris : " Episcopus autem ille, de quo nunc ultimo locuti sumus, inter super- 
ficiales numerari potuit, cujusmodi hodie multos novimus propter leges Jus- 
tinianas, quae literaturam, urgente cupiditatis et ambitionis incommodo, 
adeo in multis jam suffocarunt, quod magistrum Mainerium in auditorio 
scholae suae Parisius dicentem et damna sui temporis plangentem, audivi, 
vaticinium illud Sibillae vere nostris diebus esse completum, hoc scilicet 
'Venient dies, et vas illis, quibus leges obliterabunt scientiam literarum.' " 
(Gemin. Ecclesiast. Dist. II. cap. xxxvii.) This, like all other branches of 
learning, was as yet almost exclusively in the hands of the clergy, though 
already were arising the precursors of those subtle and daring civil lawyers 
who were destined to do such yeoman's service in abating the pretensions of 
the church. 



56 THE WAGER OF LAW. 

futility of such attempts, and its system was based on the 
indisputable maxim that it is morally impossible to prove 
a negative — unless indeed that negative should chance to 
be incompatible with some affirmative susceptible of evi- 
dence — and thus the onus of proof was thrown upon the 
accuser. 1 The enthusiastic worshippers of the Pandects were 
not long in recognizing the truth of this principle, and in 
proclaiming it far and wide. The Spanish code of Alphonso 
the Wise, in the middle of the thirteenth century, asserts 
it in almost the same words as the Roman jurisconsult. 3 
Not long before, the Assises de Jerusalem had unequivo- 
cally declared that "nul ne peut faire preuve de non ;" and 
Beaumanoir, in the "Coutumes du Beauvoisis," approv- 
ingly quotes the assertion of the civil doctors to the same 
effect, " Li clerc si dient et il dient voir, que negative ne 
doit pas quevir en proeve." 

Abstract principles, however, though freely admitted, 
were not yet powerful enough to eradicate traditional cus- 
toms rooted deeply in the feelings and prejudices of the 
age. The three bodies of law just cited contradict their 
own admissions, in retaining almost unchecked the most 
monstrous of negative proofs — the ordeal of battle — and the 
introduction of torture soon after exposed the accused to 
the chances of the negative sj^stem in its most atrocious 
form. Still these codes show a marked progress as relates 
to the kindred procedure of compurgation. The Partidas, 
promulgated about 1262, is of comparative unimportance 
as an historical document, since it was of but uncertain 
authority, and rather records the convictions of an enlight- 

1 Actor quod adseverat, probare se non posse profitendo, reum necessitate 
monstrandi contrarium non adstringit : cum per rerum naturam factum ne- 
gantis probatio nulla sit. (Const, xxii. C. de Probat. iv. 19.) — Cum inter eum, 
qui factum adseverans, onus subit probationis, et negantem numerationem, 
cujus naturali ratione probatio nulla est . . . magna sit differentia. (Const. 
x. C. de non numerat. iv. 30.) 

2 La cosa que non es non se puede probar nin mostrar segunt natura. — Las 
Siete Partidas, P. in. Tit. xir. 1. 1. 



THE THIRTEENTH CENTURY. 57 

ened ruler as to what should be law than the existing insti- 
tutions of a people. The absence of compurgation in Spain, 
moreover, was a direct legacy from the Wisigothic code, 
transmitted in regular descent through the Euero Juzgo. 
The Assises de Jerusalem is a more precious relic of me- 
diaeval jurisprudence. Constructed as a code for the gov- 
ernment of the Latin kingdoms of the East, in 1099, by order 
of Godfrey of Bouillon, it has reached us only in the form 
assumed about the period under consideration, and as it 
presents the combined experience of the warriors of many 
Western races, its silence on the subject of conjurators is 
not a little significant. The work of Beaumanoir, written 
in 1283, is not only the most perfect embodiment of the 
jurisprudence of his time, but is peculiarly interesting as a 
landmark in the struggle between the waning power of 
feudalism and the Roman theories which gave vigor and 
intensity of purpose to the enlightened centralization aimed 
at by St. Louis ; and Beaumanoir likewise passes in silence 
over the practice of compurgation, as though it were no 
longer an existing institution. All these legislators and 
lawyers had been preceded by the Emperor Frederick II., 
who, in 1231, promulgated his " Constitutiones Sicularum" 
for the government of his Neapolitan provinces. Frederick 
was Latin, and not Teutonic, both by education and predi- 
lection, and his system of jurisprudence is greatly in ad- 
vance of all that had preceded it. That conjurators should 
find no place in his scheme of legal procedure is, therefore, 
only what might be expected. The collection of laws known 
as the "Etablissements" of St. Louis is by no means a 
complete code, but it is sufficiently copious to render the 
absence of all allusion to compurgation significant. In 
fact, the numerous references to the Digest show how strong 
was the desire to substitute the Roman for the customary 
law, and the efforts of the king to do away with all negative 
proofs of course included the one under consideration. 
The same may be said of the "Livres de Jostice et de Plet" 



58 THE WAGER OF LAW. 

and the " Conseil" of Pierre cle Fontaines, two unofficial 
books of practice, which represent with tolerable fulness 
the procedures in vogue during the latter half of the thir- 
teenth century; while the "Olim," or records of the Parle- 
ment of Paris, the king's high court of justice, show that 
the same principles were kept in view in the long struggle 
by which that body succeeded in extending the royal juris- 
diction at the expense of the independence of the vainly 
resisting feudatories. 1 

All these were the works of men deeply imbued with the 
spirit of the resuscitated jurisconsults of Rome. Their 
labors bear testimony rather to the influences at work to 
overthrow the institutions bequeathed by the barbarians to 
the Middle Ages, than to a general acceptance of the innova- 
tions attempted. Their authority was still circumscribed 
by the innumerable jurisdictions which yet defied their 
gradual encroachments, and which resolutely maintained 
ancestral customs. Even an occasional instance may be 
found where the central power itself permitted the use of 
compurgation, showing how difficult it was to eradicate 
the prejudices transmitted through ages from father to son, 

1 In the u Olim," or records of the Parlement of Paris from 1254 to 1318, 
I can find but two instances in which compurgation was required — one in 
1279 at Noyon, and one in 1284 at Compiegne. As innumerable decisions are 
given of cases in which its employment would have been equally appropriate, 
these two can only be regarded as exceptional, and the inference is fair that 
some local custom rendered it impossible to refuse the privilege on these 
special occasions. (Olim, II. 153, 237.) 

A noteworthy instance of its employment occurred in 1234 at the Diet of 
Frankfort, in the presence of Henry VII., son of that Frederick II. whom 
we have seen discountenance its use in his Neapolitan laws. When the fear- 
ful persecutions instigated by the grand inquisitor, Conrad of Marburg, drew 
to a close, the last of his intended victims, the Counts of Seyne and Solms, 
cleared themselves before the king of the charge of heresy with compurga- 
torial oaths in which each was supported by eight bishops, twelve Cistercian 
abbots, twelve Franciscan and three Dominican friars, and a large number 
of Benedictine abbots, clerks, and noble laymen. (Hartzheim Concil. Ger- 
man. III. 549.) 



THE FOURTEENTH CENTURY. 59 

and that the policy adopted by St. Louis and Philippe-le- 
Bel, aided by the shrewd and energetic civil lawyers who 
assisted them so abty, was not in all cases adhered to. 
Thus, in 1303, a powerful noble of the court of Philippe-le- 
Bel was accused of a foul and treacherous murder, which a 
brother of the victim offered to prove by the wager of battle 
Philippe was endeavoring to abolish the judicial duel, and 
the accused desired strongly to escape the ordeal. He was 
accordingly condemned to clear himself of the imputed 
crime, by a purgatorial oath with ninety-nine nobles, and 
at the same time to satisfy the fraternal claim of vengeance 
with an enormous fine 1 — a decision which offers the best 
practical commentary on the degree of faith reposed in this 
system of purgation. Even the Parlement of Paris in 1353 
and a rescript of Charles-le-Sage in 1357 allude, to compur- 
gation as still in use and of binding force. 2 

It was in the provinces, however, that the system mani- 
fested its greatest vitality, protected both by the stubborn 
dislike to innovation, and by the spirit of independence 
which so long and so bitterly resisted the centralizing 
efforts of the crown. The Roman law concentrated all 
power in the person of the sovereign, and reduced his 
subjects to one common level of implicit obedience. The 
genius of the barbaric institutions and of feudalism local- 
ized power. The principles were essentially oppugnant, 
and the contest between them was prolonged and confused, 
for neither party could in all cases recognize the ultimate 
result of the minuter points involved, though each was 
fully alive to the broad issue of the struggle. 

How obstinate was the attachment to bygone forms 
may be understood, when we see even the comparatively 

1 Statuunt . . . se manu centesima nobilium se purgare, et ad hsec bene- 
dicto juveni bis septem librarum milia pro sui rancoris satisfaction prae- 
sentare. — Wilelmi Egmond. Chron. 

3 Is qui reus putatur tertia manu se purgablt, inter quos sint duo qui 
dicentur denominati. — Du Cange s. v. Jur •amentum. 



60 THE WAGER OF LAW. 

precocious civilization of a city like Lille preserve the 
compurgatorial oath as a regular procedure until the mid- 
dle of the fourteenth century, even though the progress of 
enlightenment had long rendered it a mere formality, with- 
out serious meaning. Until the year 1351, the defendant 
in a civil suit was obliged to substantiate the oath of denial 
with two conjurators of the same sex, who swore to its 
truth, with some slight expression, indeed, of reserve. 1 
The minutest regulations were enforced as to this ceremony, 
the position of every finger being determined by law, and 
though it was the veriest formality, serving merely as an 
introduction to the taking of testimony and the legal exa- 
mination of the case, 2 yet the slightest error committed by 
either party lost him the case irrecoverably. 3 

Normandy was even more faithful to the letter of the 
ancient traditions. The Coutumier in use until the revi- 
sion of 1583 under Henry III. retains a remnant of the 
practice under the name of desrene, by which, in questions 
of little moment, a man could rebut an accusation with two 
or four compurgators, even when it was sustained by wit- 
nesses. The form of procedure was identical with that of 

1 Et li deffendans, sour qui on a clamet se doit deffendre par lui tierche 
main, se chou est horn II. hornmes et lui, se chou est fame II. femmes et li 
a tierche. ..." Tel sierment que Jehans chi jura boin sierment y jura au 
mien ensient. Si m'ait Dius et chist Saint." — Roisin, Franchises etc. de la 
Ville de Lille, pp. 30, 35. 

3 Ibid. p. 51. The system was abrogated by a municipal ordinance of 
September, 1351, in accordance with a special ordonnance to that effect issued 
by King John of France in March, 1350. 

3 The royal ordonnance declares that the oath was "en langage estraigne 
et de mos divers et non de legier a retenir ou prononchier," and yet that if 
either party "par quelconques maniere faloit en fourme ou en langage ou 
que par fragilite de langhe, huirans eu, se parolle faulsist ou oubvliast, ou 
eslevast se main plus que li dite maniere acoustumee en requeroit ou quelle 
ne tenist fermement sen poch en se paulme ou ne wardast et maintenist 
pluiseurs autres frivoles et vaines chozes et manieres appartenans au dit 
sierment, selonc le loy de la dite ville, tant em parole comme en fait, il avoit 
du tout sa cause perdue, ne depuis nestoit rechus sur che li demanderes a 
claim ou complainte, ne li deffenderes a deffensce." — Ibid. p. 390. 



BEARN — SPAIN. 61 

old, and the oath, as we have already seen (page 44), was 
an unqualified assertion of the truth of that of the accused. 1 
Practically, however, we may assume that the custom had 
long grown obsolete, for the letters patent of Henry III., 
ordering the revision in 157 7, expressly state that the pro- 
visions of the existing laws "estoient la pluspart hors 
d'usage et peu on point entendu des habitants du pays ;" 
and that compurgation was one of the forgotten formulas 
may fairly be inferred from the fact that Pasquier, writing 
previous to 1584, speaks of it as altogether a matter of the 
past. 3 

The fierce mountaineers of Beam were comparatively 
inaccessible to the innovating spirit of the age, and pre- 
served their feudal independence amid the progress and re- 
form of the sixteenth century, long after it had become obso- 
lete elsewhere throughout Southern Europe. Accordingly, 
we find the practice of compurgation maintained as a regular 
form of procedure in the latest revision of their code, made 
by Henry II. of Navarre in 1551, which continued in force 
until the eighteenth century. 3 The influence of the age is 
shown, however, even there, in a modification of the oath, 
which is no longer an unreserved confirmation of the prin- 
cipal, but a mere affirmation of belief. 4 

In Castile, a revival of the custom is to be found in the 
code compiled by Pedro the Cruel, in 1356, by which, in 
certain cases, the defendant was allowed to prove his inno- 
cence with the oath of eleven hidalgos. 5 This, however, is 

1 Anc. Coutume de Normandie, chap, lxxxv. (Bourdot de Richebourg, IV. 
53-4.) 

2 Recherches de la France, Liv. iv. chap. Hi. Concerning the date of 
this, see La Croix du Maine, s. v. Estienne Pasquier. 

3 Fors et Cost, de Beam, Rubr. de Juramentz (Bourdot de Richebourg, 
IV. 1082). 

4 Lo jurament deu seguido se fe, Juran per aquetz sanctz bertat ditz 
exi que io crey. 

1 E si gelo negare e non gelo quisier probar, devel' facer salvo con once 
Fijosdalgo e el doceno, que non lo fico. — (Fuero Viejo de Castilla, Lib. I. 
6 



62 THE WAGER OF LAW. 

so much in opposition to the efforts made a century earlier, 
by Alfonso the Wise in the Partidas, to enforce the prin- 
ciples of the Roman jurisprudence, and is so contrary to 
the spirit of the Ordenamiento de Alcala, which continued 
in force until the fifteenth century, that it can only be re- 
garded as a tentative innovation, of mere temporary vali- 
dity. 

The Northern races resisted more obdurately the advances 
of the resuscitated influence of Rome. Though we have seen 
Frederick II. omitting all notice of compurgation in the code 
prepared for his Neapolitan dominions in 1231, he did not 
attempt to abrogate it among his German subjects, for it is 
alluded to in a charter granted to the city of Regonsburg in 
1230. 1 The "Speculum Suevicum," which during the thir- 
teenth and fourteenth centuries was the municipal law of 
Southern Germany, directs the employment of conjurators 
in various classes of actions which do not admit of direct 
testimony. 2 How thoroughly it remained a portion of the 
recognized system of legal procedures is evident from a 
constitution issued by Charles V. in 1548, wherein its use 
is enjoined in doubtful cases in a manner to show that it 
was an existing resource of the law, and that it retained 
its hold upon public confidence, although the conjurators 
were only required to swear as to their belief in the oath 
of their principal. 3 

In Scotland, even as late as the middle of the fourteenth 
century, its use is proved by a statute which provides that 

Tit. v. 1. 12.) It will be observed that this is an unqualified recognition of 
the system of negative proofs. 

1 Da Cange, s. v. Jurainentum. 

2 Jur. Provin. Alaman. cap. xxiv. ; eccix. § 4; cccxxix. §§ 2, 3; cccxxxix. 

*&■ 

3 Sique aecusatus tanta ac tam gravi suspitione laboraret ut aliorura quoque 
purgatione necesseesset, in arbitratu stet judicis, sibi earn velit injungere, nee 
ne, qui nimirum eorapurgatores jurabunt, se credere quod ille illive qui se 
per juramentum exeusarunt, reete vereque juraverint. — Constit. de Pace 
Publica cap. xv. § 1. (Goldast. Constit. Imp. I. 541.) , 



DENMARK SWEDEN POLAND. 63 

if a thief escaped from confinement, the lord of the prison 
should clear himself of complicity with the evasion by the 
oaths of thirty conjurators, of whom .three were required 
to be nobles. 1 

The Scandinavian nations adhered to the custom with 
even greater tenacity. In the code of Haco Haconsen, 
issued towards the close of the thirteenth century, it ap- 
pears as the basis of defensive procedure in almost all 
criminal cases, and even in civil suits its employment is 
not unfrequently directed, the number of conjurators being 
proportioned to the nature of the crime or to the amount 
at stake, and regulations for administering the oath being 
given with much minuteness. 3 In Denmark, an allusion to 
it is found in 153*7 in the laws of Christiern III., 3 and its 
vitality among the people is shown by the fact that even in 
1683, Christiern Y., in promulgating a new code, found it 
necessary to formally prohibit accused persons from being 
forced to provide conjurators. 4 In Sweden, its existence 
was similarly prolonged. Directions for its use are con- 
tained in the code which was in force until the seventeenth 
century, 5 and it is even alluded to in an ordinance of Queen 
Christina, issued in 1653. 6 

It is not a little singular that the latest active existence of 
a custom which appears so purely Teutonic should be found 
among a portion of the Sclavonic race. In Poland, it is 
described as being in full force as late as the eighteenth 
century, the defendant being obliged to support his purga- 
torial oath with conjurators, who swore as to its truth. 7 

1 Statut. Davidi II. cap. i. § 6. 

2 Jarnsida, Mannhelge & Thiofa-Balkr passim ; Erfthatal cap. xxiv. ; 
Landabrigtha-Balkr cap. xxviii. ; Kaupa-Balkr cap. v., ix., etc. 

3 Quoted by Thorpe, Ancient Laws, &c, of England, I. 28. 

4 Nemini in causa ulla injungendum est ut duodecim virorum juramento 
se purgare debeat. — Christiani V. Jur. Danic. Lib. i. c. xv, § 8. 

5 Poteritque se tunc purgare cui crimen imponitur juramento XVIII. viro- 
rum. — Raguald. Ingermund. Leg. Suecorum Lib. I. c. xvi. 

c Konigswarter, op. cit. p. 168. . 

7 Ludewig, Reliq. MSS. T. VII. p 401. 



64 THE WAGER OF LAW. 

The constitutional reverence of the Englishman for estab- 
lished forms and customs, however, preserved this relic of 
barbarism in the common law to a period later by far than 
its disappearance from the codes of nations regarded by 
Great Britain as her inferiors in progress and enlighten- 
ment. We have already seen from Glanville and Bracton 
that even in the twelfth and thirteenth centuries the "wager 
of law," as compurgation was called, was practically of 
little importance, yet no effort was made to remove it by 
statute, and it long remained as a solecism in the English 
courts. The Fleta, which is about twenty-five years later 
than Bracton's work, gives directions as to its use, by 
which we learn that in actions of debt the defendant was 
only required to produce conjurators double in number to 
the witnesses of the plaintiff, 1 thus offering an immense 
premium on dishonesty and perjury. In spite of this, it 
remained an integral part of the law. The " Termes de la 
Ley," compiled in the early part of the sixteenth century, 
states as the existing practice that " when one shall wage 
his law, he shall bring with him 6, 8, or 12 of his neighbors, 
as the court shall assign him, to swear with him." Style's 
"Practical Register," published in 165^, also describes the 
process, but an absurd mistake as to the meaning of the 
traditional expression "jurare manu" shows that the matter 
was rather a legai curiosity than a procedure in ordinary 
use ; and, indeed, the author expressly states that the prac- 
tice having been "abused by the iniquity of the people, the 
law was forced to find out another way to do justice to 
the nation." Still the law remained unaltered, and a case 
occurred in 1*799 in which a defendant successfully eluded 
the payment of a claim by producing compurgators who 
"each held up his right hand, and then laid their hands 
upon the book and swore that they believed what the de- 

1 Ut si duos vel tres testes produxerit ad probandum, oportet quod de- 
fensio fiat per quatuor vel per sex ; ita quod pro quolibet teste duos producat 
juratores usque ad duodecira. — Lib. n. c. lxiii. s. 10. 



THE ECCLESIASTICAL COURTS. 65 

fcndant swore was true." The court endeavored to prevent 
this farce, but law was law, and reason was forced to sub- 
mit. Even this did not provoke a change. In 1824, in the 
case of King v. Williams (2 Barnewall & Cresswell, 528), 
some black-letter lawyer revived the forgotten iniquity for 
the benefit of a client who could get no testimony, and 
demanded that the court should prescribe the number of 
conjurators necessary for the defence, but the court refused 
assistance, desiring to give the plaintiff the benefit of any 
mistake that might be made. Williams then got together 
eleven conjurators, and appeared in court with them at his 
back, when the plaintiff, recognizing the futility of any 
further proceedings, abandoned his case in disgust. 1 Still 
the fine reverential spirit postponed the inevitable innova- 
tion, and it was not until 1833 that the wager of law was 

formally abrogated by 3 and 4 William IV., c. 42, s. 13. 2 
I 

While the common sense of mankind was gradually elimi- 
nating the practice from among the recognized procedures 
of secular tribunals, the immutable nature of ecclesiastical 
observances prolonged its vitality in the bosom of the 
church. We have seen above that Innocent III., about the 
commencement of the thirteenth century, altered the form 
of oath from an unqualified confirmation to a mere asser- 
tion of belief in the innocence of the accused. That this 
at once became the standard formula in ecclesiastical cases 
is probable when we find it adopted for the oaths of the 
compurgators who, during the Albigensian persecution, 
were required by the nascent Inquisition in all cases to 
assist in the purgation of such suspected heretics as were 
allowed to escape so easily. 3 The practice thus commenced 

1 I owe these various references to a curious paper in the London "Jurist" 
for March, 1827, the writer of which instances the wager of law as an evi- 
dence of "that jealous affection and filial reverence which have converted 
our code into a species of museum of antiques and legal curiosities." 

2 Wharton's Law Lexicon, 2d ed., p. 758. 

3 Ego talis juro ... me firmiter credere quod talis non fuit Insabbatus, 

6* 



66 THE WAGER OF LAW. 

at the foundation of the Inquisition was persevered in by 
that terrible tribunal to the last. The accused against 
whom nothing could be proved was called upon to produce 
compurgators before he could be acquitted, and a failure 
to procure the number designated by the judge was equiva- 
lent to a condemnation. 1 This fearful system of the pre- 
sumption of guilt, requiring the negative proof from the 
unfortunate wretch whom suspicion had deprived of his 
friends, was continued in force until the final abolition of 
the Inquisition. 2 

In the regular ecclesiastical courts, Lancelotti, at the end 
of the sixteenth century, speaks of compurgation as the 
only mode of defence then in use in doubtful cases, where 
the evidence was unsatisfactory. 3 And amid certain orders 
of monks within the last century, questions arising between 
themselves were settled by this mode of trial. 4 

Even in England, after the Anglican Church had received 
its final shape under Cranmer, during the reign of Edward 
VI., the custom appears in a carefully compiled body of 
ecclesiastical law, of which the formal adoption was only 
prevented accidentally by the untimely death of the young 
king. By this, a man accused of a charge resting on pre- 
sumptions and incompletely proved, was required to clear 
himself with four compurgators of his own rank, who swore, 
as provided in the decretals of Innocent III., to their belief 
in his innocence. 5 

Valdensis, vel Pauperum de Lugduno . . . et credo firmiter eum in hoe 
jurasse verum. — Doctrina de modo procedendi contra Haereticos. (Mart, et 
Durand. T. V. p. 1801.) 

1 Si vero susciperet purgationem, et in ea deficeret, uti haereticus esset 
censendus, et poenaa hasretici suhjaceret. — (Villadiego, Fuero Juzgo, 318 b .) 
Villadiego wrote in 1599, and even the terror of the Holy Office could not 
prevent him from stigmatizing the system — "haec purgatio fragilis est, peri- 
culosa et caeca atque fallax." 

2 Du Cange, s. v. Purgatio. 

3 Institut. Jur. Canon. Lib. IV. Tit. ii. § 2. 

4 Du Cange, loc. cit. 

6 Burnet, Reformation, Vol. I. p. 199 (Ed. 1681), 



ACCUSATORIAL CONJURATORS. 6T 

Though not strictly a portion of our subject, the question 
is not without interest as to the power or obligation of the 
plaintiff or accuser to fortify his case with conjurators. 
There is little evidence of such a custom in primitive times, 
but one or two allusions to it in the "Leges Barbarorum" 
show that it was occasionally practised. Some of the 
earlier texts of the Salique law contain a section providing 
that in certain cases the complainant shall sustain his 
action with a number of conjurators varying with the 
amount at stake ; a larger number is required of the de- 
fendant in reply; and it is presumable that the judges 
weighed the probabilities on either side, and rendered a de- 
cision accordingly. 1 As this is omitted in the later revi- 
sions of the law, it probably was not widely practised, or 
regarded as of much importance. Among the Baioarians, 
a claimant of an estate produced six conjurators who took 
the oath with him, and whose united efforts could be re- 
butted by the defendant with a single competent witness. 3 
These directions are so precise that there can be no doubt 
that the custom prevailed to a limited extent among 
certain tribes, as a natural expression of the individuality 
of each house or family as distinguished from the rest of 
the sept. That it was, perhaps, more generally employed 
than the scanty references to it in the codes would indi- 
cate may be inferred from one of the false decretals which 
Charlemagne was induced to adopt and promulgate. 
According to this, no accusation against a bishop could be 
successful unless supported by seventy-two witnesses, all 
of whom were to be men of good repute ; forty-four were 
required to substantiate a charge against a priest, thirty- 
seven in the case of a deacon, and seven when a member of 
the inferior grades was implicated. 3 Though styled wit- 

1 Tit. lxxiv. of Herold's text. Cap. Extravagant. No. xvm. of Par- 
dessus. 

3 L. Baioar. Tit. xvi. cap. i. § 2. 

3 Capit. Car. Mag VI. ann. 806 c. xxiii. 



68 THE WAGER OF LAW. 

nesses in the text, the number required is so large that 
they could evidently have been only conjurators, with whom 
the complainant supported his oath of accusation, and the 
manufacture of such a law would seem to show that the 
practice of employing such means of substantiating a 
charge was familiar to the minds of men. 

In England, the Anglo-Saxon laws required, except in 
trivial cases, a " fore-oath" from the accuser (fo?'ath 1 ante- 
jur amentum, prsejur amentum), and William the Conqueror, 
in his compilation of the laws of Edward the Confessor, 
shows that this was sometimes strengthened by requiring 
the addition of conjurators, who were in no sense witnesses, 
since their oath had reference, not to the facts of the case, 
but solely to the purity of intention on the part of the 
accuser. 1 Indications of the same procedure are to be found 
in the collection known as the Laws of Henry I. 2 

In an age of comparative simplicity, it is natural that 
men should turn rather to the guarantees of individual 
character, or to the forms of venerable superstition, than to 
the subtleties of legal procedure. Even as the defendant 
was expected to produce vouchers of his truthfulness, so 
might the plaintiff be equally required to give evidence that 
his repute among his neighbors was such as to justify the 
belief that he would not bring a false charge or advance an 
unfounded claim. The two customs appear to arise from 
the same process of reasoning and to be identical in spirit, 
yet it is somewhat singular that, as the compurgatorial 
oath declined, the practice of sustaining the plaintiff's case 
with conjurators seems to have become more common. In 

1 Et li apelur jurra sur Iui par VII. humes numes, sei siste main, que 
pur haur nel fait, ne pur auter chose, si pur sun dreit nun purchacer. — L. 
Guillel. I. cap. xiv. 

2 Omnis tihla tractetur ante-juramento piano vel observato. — L. Henrici 
I. Tit. lxiv. § 1. Ante-juramento a compellante habeatur, et alter se 
sexto decime sue purgetur j sicut accusator precesserit. — Ibid. Tit. lxvi. 



ACCUSATORIAL CONJURATORS. 69 

Beam the laws of the thirteenth century provide that in 
cases of debt under forty sous, where there was no testi- 
mony on either side, the claimant could substantiate his 
case by bringing forward one conjurator, while the defend- 
ant could rebut it with two. 1 In Germany, about the 
same period, the principle was likewise admitted, as is evi- 
dent from the "juramentum supermortuum" already re- 
ferred to, and other provisions of the municipal law. 9 So 
thoroughly, indeed, was it established that, in some places, 
in prosecutions for highway robbery, arson, and other 
crimes, the accuser had a right to require every individual 
in court, from the judge to the spectator, to help him with 
an oath or to swear that he knew nothing of the matter, and 
even the attorney for the defendant was obliged to undergo 
the ceremony. 3 In Sweden it was likewise in use under the 
name of jeffniteed.* In Norway and Iceland, in certain 
cases of imputed crime, the accuser was bound to produce 
ten companions, of whom eight appeared simply as sup- 
porters, while two swore that they had heard the offence 
spoken of, but that they knew nothing about it of their 
own knowledge — the amount of weight attached to which 
asseveration is shown by the fact that the accused only 
required two conjurators to clear himself. 5 

Perhaps the most careful valuation of the oath of a 
plaintiff is to be found in the Coutumier of Bordeaux, which 
provides that, in civil cases not exceeding four sols in 
amount, the claimant should substantiate his case by an 
oath on the Gospels in the Mayor's Court ; when from four 
to twenty sols were at stake, he was sworn on the altar of 

1 For de Morlaas, Rubr. xxxviii. art. 63. 

2 Jur. Provin. Alaman. cap. cccix. § 4. 

3 Ibid. cap. cccxcviii. §§ 19, 20. 

4 Du Cange sub voce. 

8 Ideo manus libro imponimus sacro, quod audivimus (crimen rumore 
sparsum), et nobis ignotum est verum sit nee ne. — Jarnsida, Mannhelge 
cap. xxiv. 



10 THE WAGER OF LAW. 

St. Projet or St, Antoine; from twenty sols to fifteen livres, 
the oath was taken in the cemetery of St. Seurin, while for 
amounts above that snm it was administered on the " Fort" 
or altar of St. Seurin himself. Persons whose want of vera- 
city was notorious were obliged in all cases, however un- 
important, to swear on the Port, and had moreover to 
provide a conjurator who with an oath of equal solemnity 
asserted his belief in the truth of his companion. 1 

The custom of supporting an accusatorial oath by con- 
jurators was maintained in some portions of Europe to a 
comparatively recent period. Wachter 3 prints a curious 
account of a trial, occurring in a Swabian court in 1505, 
which illustrates this, as well as the weight which was still 
attached to the oath of a defendant. A woman accused 
three men on suspicion of being concerned in the murder 
of her husband. They denied the charge, but when the 
oath of negation was tendered to them, with the assurance 
that, if they were Swabians, it would acquit them, they 
demanded time for consideration. Then the advocate of 
the widow stepped forward to offer the oath of accusation, 
and two conjurators being found willing to support him, 
the accused were condemned without further examination 
on either side. A similar process was observed in the 
Pehmgericht, or Court of the Free Judges of Westphalia, 
whose jurisdiction in the fourteenth and fifteenth centuries 
became extended over the whole of Germany. Accusations 
were supported by conjurators, and when the defendant 
was a Frei^graff, or presiding officer of a tribunal, the com- 
plainant was obliged to procure seven Frei-schoppen, or 
free judges, to take the accusatorial oath with him. 3 

The latest indication that I have met with of established 
legal provisions of this nature occurs in the laws of Britanny, 
as revised in 1539. By this, a man claiming compensation 

1 Rabanis, Revue Hist, de Droit, 1861, p. 511. 

2 Du Boys, Droit Crirainel des Peuples Modernes, II. 595. 

3 Freher. de Secret. Judic. cap. xvii. § 26. 



BRITANNY. ? 1 

for property taken away is to be believed on oath as to his 
statement of its.value, provided he can procure companions 
worthy of credence to depose "qu'ils croyent que le jureur 
ait fait bon et loyal serment." 1 Even this last vestige dis- 
appears in the revision of the Coutumier made by order of 
Henry III. in 1580. 

1 Anc Cout. de Bretagne, Tit. vin. art. 168. 



II. 

THE WAGER OF BATTLE. 



When man is emerging from barbarism, the struggle 
between the rising powers of reason and the waning forces 
of credulity, prejudice, and custom, is full of instruction. 
Wise in our generation, we laugh at the inconsistencies 
of our forefathers, which, rightly considered as portions 
of the great C3 r cle of human progress, are rather to be 
respected as trophies of the silent victory, pursuing its 
irresistible course by almost imperceptible gradations. 
When, therefore, in the dark ages, we find the elements 
of pure justice so strangely intermingled with the arbi- 
trament of force, and with the no less misleading appeals 
to chance, dignified under the forms of Christianized super- 
stition, we should remember that even this is an improve- 
ment on the all-pervading first law of brute strength. 
We should not wonder that barbarous tribes require to be 
enticed towards the conceptions of abstract right, through 
pathways which, though devious, must reach the goal at 
last. When the strong man is brought, by whatever means, 
to yield to the weak, a great conquest is gained over human 
nature ; and if the aid of superstition is invoked to decide 
the struggle, we have no right, while enjoying the result, to 
stigmatize the means by which Providence has seen fit to 
bring it about. With uneducated nations, as with unedu- 
cated men, sentiment is stronger than reason, and sacrifices 
will be made for the one which are refused to the other. 
If, therefore, the fierce warrior, resolute to maintain an 
1 



74 THE WAGER OP BATTLE. 

injustice or a usurpation, can be brought to submit his claim 
to the chances of an equal combat or of an ordeal, he has 
already taken a vast step towards acknowledging the em- 
pire of right, and abandoning the personal independence 
which is incompatible with the relations of human society. 
It is by such indirect means that mere aggregations of 
individuals, each relying on his sword and right hand, have 
been gradually led to endure regular forms of government, 
and, thus becoming organized nations, to cherish the ab- 
stract idea of justice as indispensable between man and 
man. Yiewed in this light, the ancient forms of procedure 
lose their ludicrous aspect, and we contemplate their whim- 
sical jumble of force, faith, and reason, as we might the 
first rude engine of Watt, or the " Clermont" which pain- 
fully labored in the waters of the Hudson — clumsy and 
rough it is true, yet venerable as the origin and prognostic 
of future triumphs. 

There is a natural tendency in the human mind to cast 
the burden of its doubts upon a higher power, and to relieve 
itself from the effort of decision by seeking in mystery the 
solution of its difficulties. From the fetish worshippers 
of Congo to the polished sceptics who frequented the salon 
of Mile, le Normant, the distance, though great, is bridged 
over by this common weakness ; and whether the informa- 
tion sought be of the past or of the future, the impulse is 
the same. When, therefore, in the primitive mallum, the 
wisdom of the rachinborgs was at fault, and the absence 
or equal balance of testimony rendered a verdict difficult, 
wha£ was more natural than to seek a decision by appeal- 
ing to the powers above, and to leave the matter to the 
judgment of God? 1 Nor, with the warlike instincts of the 

1 Thus, as late as the thirteenth century, the municipal law of Southern 
Germany, in prescribing the duel for cases destitute of testimony, says with 
a naive impiety : " Hoc ideo statntum est, quod causa haec nemini cognita 
est quam Deo, cujus est eandem juste decidere." Logical enough, if the 
premises be granted ! Even as late as 1617, August Viescher, in an elabo 



DISTINCT FROM THE MODERN DUEL. 15 

race, is it surprising that this appeal should be made to 
the God of battles, to whom, in the ardor *>f new and 
imperfect Christianity, they looked in every case for a spe- 
cial interposition in favor of innocence and justice. The 
curious mingling of procedure is well illustrated in a form 
of process prescribed by the primitive Bavarian law. A 
man comes into court with six conjurators to claim an 
estate ; the possessor defends his right with a single wit- 
ness, who must be a landholder of the vicinage. The 
claimant then attacks the veracity of the witness — " Thou 
hast lied against me. Grant me the single combat, and let 
God make manifest whether thou hast sworn truth or false- 
hood;" 1 and, according to the event of the duel, is the 
decision as to the truthfulness of the witness, and the own- 
ership of the property. 

In discussing the judicial combat, it is important to keep 
in view the wide distinction between the wager of battle 
as a judicial institution, and the custom of duelling which 
has obtained with more or less regularity among all races 
and at all ages. When the Horatii met the Curiatii, or 
when Antony challenged Octavius to decide the fate of the 
empire of the world with their two swords, these were 
isolated proposals to save the unnecessary effusion of blood, 
or to gratify individual hate. When the raffine of the 

rate treatise on the judicial duel, expressed the same reliance on the divine 
interposition : "Dei enim hoc judicium dicitur, soli Deo causa terminanda 
committitur, Deo igitur authore singulare hoc certamen suscipiendum, ut 
justo judicio adjutor sit, omnisque spes ad solam summae providentiam 
Trinitatis referenda est." — (Vischer Tract. Juris Duellici Universi, p. 109.) 
This work is a most curious anachronism. Viescher was a learned juriscon- 
sult who endeavored to revive the judicial duel in the seventeenth century 
by writing a treatise of 700 pages on its principles and practice. He exhibits 
, the wide range of his studies by citations from no less than six hundred and 
seventy-one authors, and manages to convey an incredibly small amount of 
information on the subject. 

1 Mendacium jurasti contra me : sponde me pugna duorum, et manifestet 
Deus si mendacium an veritatem jurasti. — L. Baioar. Tit. xvi. c. i. § 2. 



76 THE WAGER OF BATTLE. 

times of Henri Quatre, or the modern fire-eater, wipes » put 
some imaginary stain in the blood of his antagonist, the 
dnel thns fought, though bearing a somewhat closer ana- 
logy to the judicial combat, is not derived from it, but from 
the right of private vengeance which was common to all 
the Teutonic tribes, and from the cognate right of private 
warfare which was the exclusive privilege of the gentry 
during the feudal period. 1 The established euphuistic 
formula of demanding "the satisfaction of a gentleman," 
thus designates both the object of the custom and its 
origin. The abolition of private wars gave a stimulus to 
the duel at nearly the period when the judicial combat fell 
gradually into desuetude. The one thus succeeded to the 
other, and, being kindred in nature, it is not surprising that 
for a time there was some confusion in the minds of men 
respecting their distinctive characteristics. Yet it is not 
.difficult to draw the line between them. The object of the 
one was vengeance and reparation ; the theory of the other 
was the discovery of truth, and the impartial ministration 
of justice. 

It is easy to multiply examples illustrating this. John 
Yan Arckel, a knight of Holland, followed Godfrey of 
Bouillon to the first crusade. When some German forces 
joined the army, a Tyrolese noble, seeing Yan Arckel's arms 
displayed before his tent, and recognizing them as identi- 
cal with his own, ordered them torn down. The insult was 
flagrant, but the injured knight sought no satisfaction for 
his honor. Laying the case before the chiefs of the crusade, 
an examination was made and both parties proved their 
ancestral right to the same bearings. To decide the con- 
flicting and incompatible claims, the judges ordered the 

1 The early edicts directed against the duel proper (Ordonn. Charles IX., 
an. 1566; Henri IV., an. 1602 — in Fontanon I. 665) refer exclusively to 
the noblesse, and to those entitled to bear arms, as addicted to the practice, 
while the judicial combat, as we shall see, was open to all ranks and was 
enforced indiscriminately upon all. 



EXAMPLES OP THE JUDICIAL DUEL. 11 

judicial combat, in which Yan Arckel deprived his antago- 
nist of life and quarterings together, and vindicated his 
right to the argent 2 bars gules, which in gratitude to 
Heaven he bore for eight long years in Palestine. This 
was not a quarrel on a punctilio, nor a mode of obtaining 
redress for an insult, but an examination into a legal ques- 
tion which admitted of no other solution according to the 
manners of the age. 1 When, after the Sicilian Vespers, 
the wily Charles of Anjou was sorely pressed by his victo- 
rious rival Don Pedro I. of Aragon, and desired to gain 
time in order to repress a threatened insurrection among 
his Neapolitan subjects, he sent a herald to Don Pedro to 
accuse him of bad faith in having commenced the war 
without defiance. The fiery Catalan fell into the snare, and 
in order to clear himself of the charge, which was not ill- 
founded, he offered to meet his accuser in the champ-clos. 
Both parties swore upon the Gospels to decide the question 
by combat, a hundred on each side, in the neutral territory 
of Bordeaux ; and Charles, having obtained the necessary 
suspension of arms, easily found means to prevent the 
hostile meeting. 2 Though practically this challenge may 
differ little from that of Antony — its object in reality being 
the crown of the Two Sicilies — still its form and purport 
were those of the judicial duel, the accused offering to dis- 
prove the charge of mala fides on the body of his accuser. 
So, when Francis I., in idle bravado, flung down the gaunt- 
let to Charles Y., it was not to save half of Europe from 
fire and sword, but simply to absolve himself from the 
well-grounded charge of perjury brought against him by 
the Emperor for his non-observance of the treaty of Mad- 
rid. This again, therefore, wore the form of the judicial 

1 Chron. Domin. de Arkel. (Matthaei Analect. VIII. 296). 

2 Ramon Muntaner, cap. Ixxi. — Nothing more romantic is to be found 
in the annals of chivalry than Muntanev's account of Don Pedro's ride to 
Bordeaux, and appearance in the lists, where the seneschal was unable to 
guarantee him a fair field. 

T* 



T8 THE WAGER OF BATTLE. 

combat, whatever might be the motives of personal hate 
and craving of notoriety which influenced the last imitator 
of the follies of chivalry. 1 The celebrated duel, fought in 
154T, between Jarnac and La Chastaigneraye, so piteously 
deplored by honest old Brantome, shows the distinction 
maintained to the last. It was conducted with all judicial 
ceremonies, in presence of Henry II., not to settle a point 
of honor, but to justify Jarnac from a disgusting accusation 
brought by his adversary. Resulting most unexpectedly 
in the death of Chastaigneraye, who was a favorite of the 
king, the monarch was induced to put an end to all legal- 
ized combats, though the illegal practice of the private 
duel not only continued to flourish, but increased beyond 
all precedent during the succeeding half-century — Henry 
IY. having granted in twenty-two years no less than seven 
thousand letters of pardon for duels fought in contraven- 
tion of the royal edicts. The modern mode of obtaining 
" satisfaction" is so repugnant to the spirit of our age that 
it is perhaps not to be wondered at if its advocates should 
endeavor to affiliate it upon the ancient wager of battle. 
Both relics of barbarism, it is true, drew their origin from 
the same habits and customs, yet they have coexisted as 
separate institutions ; and, however much intermingled at 
times by the passions of periods of violence, they were 
practised for different ends, and were conducted with dif- 
ferent forms of procedure. 

Our theme is limited to the combat as a judicial process. 
Leaving, therefore, untouched the vast harvest of curious 
anecdote afforded by the monomachial propensities of 
modern times, we will proceed to consider briefly the his- 
tory of the legal duel from its origin to its abrogation. 
Its mediaeval panegyrists sought to strengthen its title to 
respect by affirming that it was as old as the human race, 
and that Cain and Abel, unable to settle their conflicting 

1 Du Bellay, Memoires, Liv. III. 



ITS ANTIQUITY. 79 

claims in any other mode, agreed to leave the decision to 
the chances of single combat ; but we will not enter into 
speculations so recondite. Unknown as was the judicial 
duel to the races of classical antiquity, or to the ancient 
civilizations of the East, and confined to the nations of 
modern Europe, it is not a little singular that the custom 
should have prevailed with general unanimity from Sparti- 
vento to the North Cape, and that, with but one or two 
exceptions, all the tribes which founded the European 
states should have adopted it with such common sponta- 
neity that its origin cannot be assigned with certainty to 
any one of them. It would seem to have been everywhere 
autochthonic, and the theories which would attribute its 
paternity especially to the Burgundians, to the Franks, or 
to the Lombards, are equally destitute of foundation. 

The earliest allusion to the practice occurs in Livy, who 
describes how some Spaniards seized the opportunity of a 
gladiatorial exhibition held by Scipio to settle various civil 
suits by combat, when no other convenient mode of solu- 
tion had presented itself; 1 and he proceeds to particulnize 
a case in which two rival cousins decided in this manner a 
disputed question in the law of descent, despite the earnest 
remonstrances of the Roman general. 3 This could hardly 
have been a prevailing custom, however, anions^ the abo- 
rigines, for Caesar makes no mention of it among the Gauls, 
nor does Tacitus among the Germans; 3 and ther; silence on 

1 Quidem lites quas disceptandofinire nequierant aut noluerant, pacto inter 
se ut victorem res sequeretur, ferro decreverunt. — Lib. xxvu. cap. xxi. 

2 Nee alium deorum hominumve quam Martem se judiceni habituros esse. 
— Ibid. 

3 A passage in the "De Moribus Germanise," cap. x., is commonly, but 
erroneously, quoted as showing the existence of the duel as a means of evi- 
dence among the Germans. When about to undertake an important war, 
one of the enemy was captured and obliged to fight with a chosen champion, 
an augury being drawn from the result as to the event of the war. There 
is a vast difference, however, between a special omen of the future, and a 
proof of the past in the daily affairs of life. 

Du Cange quotes an expression from Paterculus to show that the judicial 



80 THE WAGER OP BATTLE. 

the subject must be accepted as conclusive, since a system 
so opposed to the principles of the Roman law could not 
have failed to impress them, had it existed. Yet in the 
fourth century, an allusion which occurs in Claudian would 
seem to show that by that time the idea had become familiar 
to the Roman mind. 1 

If the fabulous antiquity attributed by the early his- 
torians to the Danish monarchy be accepted as credible, a 
statement may be quoted from Saxo Grammaticus to the 
effect that about the Christian era Frotho III., or the Great, 
ordered the employment of the duel to settle all contro- 
versies, preferring that his subjects should learn to rely on 
courage rather than on eloquence ; a and however apocryphal 
the chronology may be, yet the tradition shows that even 
in those ancient times the origin of the custom was already 
lost in the night of ages. Among the Feini or ancient 
Irish, the custom undoubtedly existed in the earliest periods, 
for in the Senchus Mor, or code compiled under the super- 
vision of St. Patrick, there is an allusion to a judicial 
combat long previous, when Conch obar and Sencha, father 
of Brigh, first decreed that a delay of five days should 
take place in such affairs. 3 At the time of the conversion 

appeal to the sword was customary among the Germans, but, although I am 
diffident in dissenting from so absolute an authority, I cannot see such mean- 
ing in the passage. Paterculus merely says (Lib. it. cap. cxviii.), in describ- 
ing the stratagems which led to the defeat of Varus, " et solita armis decerni 
jure terminarentur." Taken with the context, this would appear to refer 
merely to the law of the strongest which prevails among all savage tribes. 

1 Qui male suspectam nobis impensius arsit 
Vel leto purgare fidem : qui judiee ferro 

Diluit immeritum laudato sanguine crimen. — De Bell. Getico V. 591. 

2 De qualibet vero controversia ferro decerni sanxit, speciosius virihus 
quam verbis confligendum existimans. — Saxon. Grammat. Hist. Dan. Lib. v. 

3 Senchus Mor I. 251. 

"Why is the distress of five days always more usual than any other dis- 
tress ? On account of the combat fought between two in Magh-inis. When 
they had all things ready for plying their arms, except a witness alone, they 
met a woman at the place of combat, and she requested of them to delay, 
saying, 'If it were my husband thatwas there, I would compel you to delny.' 



THE PRANKS. 81 

of Ireland, therefore, the duel was an ancestral right firmly 
established, and subject to precise legal regulations. So 
general was it, indeed, that St. Patrick, in a council held 
in 456, was obliged to forbid his clergy from appealing to 
the sword, under a threat of expulsion from the church. 1 
Towards the end of the same century, King Gundobald 
caused the laws of the Burgundians to be collected, and 
among them the wager of battle occupies so conspicuous 
a place that it obtained in time the name of Lex Gundebalda 
or Loy Gombette, giving rise to the belief that it originated 
with that race. 

In the ordinary texts of the Salique law, no mention is 
made of it, but in one manuscript it is alluded to as a 
regular form of procedure. 2 This silence, however, does 
not justify the conclusion that the battle ordeal was not 
practised among the Franks. Enough instances of it are 
to be found in their early history to show that it was by 
no means uncommon; 3 and, at a later period, the same 
absence of reference to it is observable in the Lex Emen- 
data of Charlemagne, though the capitularies of that 
monarch frequently allude to it as a legal process in 
general use. The off-shoots of the Salique law — the Rip- 

' I would delay, ' said one of them, ' but it would be prejudicial to the man 
who sues me ; it is his cause that would be delayed.' ' I will delay,' said 
the other. The combat was then put off, but they did not know till when it 
was put off, until Conchubhur and Sencha passed judgment respecting it ; 
and Sencha asked, 'What is the name of this woman?' ' Cuicthi' (five), 
said she, ' is my name.' 'Let the combat be delayed,' said Sencha, ' in the 
name of this woman, for five days.' From which is derived 'The truth of 
the men of the Feini would have perished, had it not been for Cuicthi.' It 
is Brigh that is here called Cuicthi." 

1 Rebus suis clericus ille solvat debitum ; nam si armis compugnaverit 
cum illo, merito extra ecclesiam computetur. — Synod. S. Patricii, ann. 456, 
can. vm. 

2 Si tamen non potuerit adprobare . . . . et postea, si ausus fuerit, pugnet, 
— Leyden MS. — Capit. Extravagant. No. xxviii. of Pardessus. 

3 Gregor. Turon. Hist. Franc. Lib. vn. c. xiv. ; Lib. x. c. x. • Aimoini 
Lib. iv. c. ii. 



82 THE WAGER OF BATTLE. 

uarian, Allemannic, and Bavarian codes — which were com- 
piled by Thierry, the son of Clovis, revised successively 
by Childebert and Clotair II., and put into final shape by 
Dagobert I. about the year 630, in their frequent reference 
to the " campus," show how thoroughly it pervaded the 
entire system of Germanic jurisprudence. The Lombards 
were, if possible, even more addicted to its use. Their 
earliest laws, compiled by King Rotharis in 643, seventy- 
six years after their occupation of Italy, make constant 
reference to it, and the strong hold which it then had on 
the veneration of the race, as an ancestral custom, is shown 
by the fruitless efforts of that legislator and his successors 
to restrict its employment and finally to abrogate it. Thus 
Rotharis forbids its use in cases of importance, substituting 
conjurators, with an expression of disbelief, which shows 
how little confidence was felt in its results even then by 
enlightened men. 1 The next law-giver, King Grimoald, 
decreed that thirty years' possession of either land or 
liberty relieved a defendant from maintaining his title by 
battle, the privilege of employing conjurators being then 
conceded to him. 3 In the succeeding century, King Luit- 
prand sought to abolish it entirely, but finding the preju- 
dices of his people too strong to be overcome, he placed 
on record in the statute book a declaration of his contempt 
for it and a statement of his efforts to do away with it, 
while he was obliged to content himself with limiting the 

1 Quia absurdum et impossible videtur esse ut tarn grandis causa sub uno 
scuto per puguam dirimatur. — (L. Longobard. Lib. n. Tit. lv. §§ 1, 2, 3.) 
How completely this was at variance with the customs of the Lombards is 
evident from a case which occurred under his immediate predecessor Ario- 
valdus. That monarch imprisoned his queen Gundeberga, a Merovingian 
princess, on an accusation of conspiracy brought against her by Adalulf, a 
disappointed suitor. When Clotair the Great sent an embassy to rescue his 
fair relative, the question was decided by a single combat between the accuser 
and a champion named Pitto, and on the defeat of Adalulf, the queen was 
pronounced innocent and restored to the throne after a confinement which 
had lasted three years. — Aimoini Lib. iv. c. x. 

3 L. Longobard. Lib. n. Tit. xxxv. §§4, 5. 



THE ANGLO-SAXONS. 83 

extent of its application, and diminishing the penalties 
incurred by the defeated party. 1 The laws of the Angles, 
the Saxons, and the Frisians, likewise bear testimony to 
the universality of the custom. 3 Even among the Welsh 
it prevailed to a considerable extent, and though Hoel 
Dha, when he revised their code in 914, endeavored to put 
an end to it, he was unable to do so effectually. 

It is not a little singular that the duel appears to have 
been unknown among the Anglo-Saxons. Employed so 
extensively as legal evidence throughout their ancestral 
regions, by the kindred tribes from which they sprang, by 
the races among which they settled, and by the Danes and 
Norwegians who became incorporated with them ; harmon- 
izing moreover with their general habits and principles of 
action, it would seem impossible that they should not like- 
wise have practised it. That such was the case is one of the 
anomalies which defy speculation ; and the bare fact can 
only be stated that it is not referred to in any of the Anglo- 
Saxon or Anglo-Danish codes. There seems, indeed, to be 
no reason to doubt that its introduction into English juris- 
prudence dates only from the time of William the Con- 
queror. 3 

1 Gravis causa nobis esse comparuit, ut sub uno scuto, per unam pugnam, 
ornnem suam substantiam homo amittat. . . . Quia incerti sumus de judicio 
Dei ; et multos audivimus per pugnam sine justa causa suam causam perdere. 
Sed propter consuetudinem gentis nostne Longobardorum legem impiam 
vetare non possumus. — (L. Longobard. Lib. I. Tit. ix. § 23.) Muratori, how- 
ever, states that the older MSS. read " legem istam," in place of " impiam," 
as given in the printed texts, which would somewhat weaken the force of 
Luitprand's condemnation. 

2 L. Anglior. et Werinor. Tit. i, cap. iii. and Tit. xv. — L. Saxon. Tit. 
xv. — L. Frision. Tit. v. c. i. and Tit. xi. c. iii. 

3 A charter issued by William, which appears to date early in his reign, 
gives the widest latitude to the duel both for his French and Saxon subjects. 
— (L. Guillelmi Conquest, n. §§ 1, 2, 3. Thorpe, I. 488.) Another law, how- 
ever, enabled a Norman defendant to decline the combat when a Saxon was 
appellant. " Si Francigena appellaverit Anglum. . . . Anglus se defendat 
per quod melius voluerit, aut judicio ferri, aut duello. ... Si autem An- 
glus Francigenam appellaverit et probare voluerit, judicio aut duello, volo 



84 THE WAGER OF BATTLE. 

The only other barbarian race among whose laws the 
battle trial found no place was the Gothic, and here the ex- 
ception is susceptible of easy explanation. The effect upon 
the invaders of the decaying but still majestic civilization 
of Rome, the Byzantine education of Theodoric, the leader 
of the Ostrogoths, and his settled policy of conciliating the 
Italians by maintaining as far as possible the existing state 
of society, preclude any surprise that no allusion to the 
practice should occur in the short but sensible code known 
as the "Edict of Theodoric," which shows how earnestly 
that enlightened conqueror endeavored to fuse the invaders 
and the vanquished into one body politic. 1 With regard 
to the Wisigoths, we must remember that early conversion 
to Christianity and long intercourse with civilization had 
already worn off much of the primitive ferocity of a race 
which could produce in the fourth century such a man as 
Ulphilas. They were the earliest of the invaders who suc- 
ceeded in forming'a permanent occupation of the conquered 
territories ; and settling, as they did, in Narbonensian Gaul 
and Spain while the moral influence of Rome was }^et all 
powerful, the imperial institutions exercised a much greater 
effect upon them than on the subsequent bands of Northern 
barbarians. Accordingly, we find their codes based almost 
entirely upon the Roman jurisprudence, with such modifi- 
cations as were essential to adapt it to a ruder state of 
society. Their nicely balanced provisions and careful dis- 
tune Francigenam purgare se sacramento non fraeto." — (Ibid. ni. § 12. 
Thorpe, I. 493.) Such immunity seems a singular privilege for the generous 
Norman blood. 

1 An epistle from Theodoric to the Gaulish provinces, which he had just 
added to his empire, congratulates them on their return to Roman laws and 
usages, which he orders them to adopt without delay. Its whole tenor shows 
his thorough appreciation of the superiority of the Imperial codes over the 
customs of the barbarians, and his anxiety for settled principles of juris- 
prudence. "Jura publica certissima sunt humanae vit'ae solatia, infirmorum 
auxilia, potentum frena." — (Cassiodor. Variar. Lib. in. Epist. xvii.) Various 
other passages might be cited to the same effect "Jura veterum ad nostram 
cupimus reverentiam cusiodiri," " Delectamur jure Romano vivere," etc. 



THEWISIG0TIIS. 85 

tinctions offer a striking contrast to the shapeless legisla- 
tion of the races that followed, and neither the judicial 
combat nor canonical compurgation found a place in them. 
Even the vulgar ordeal would appear to have been unknown 
until a period long subsequent to the conquest of Aquitaine 
by Clovis, and but little anterior to their overthrow in 
Spain by the Saracens. That this apparent exception to 
the prevailing customs of the barbarians was due, however, 
to their acquiescence in the enlightened zeal of their legis- 
lators, Theodoric and Alaric II., is rendered evident by 
passages in Cassiodorus, which show that the Gothic races 
originally followed the same practices as the other savage 
tribes. 1 Even as in Italy the Lombard domination destroyed 
the results of Theodoric's labors, so in France the introduc- 
tion of the Frankish element revived the barbarian instincts, 
and in the celebrated combat before Louis-le-Debonnaire, 
between Counts Bera and Sanila, who were both Goths, we 
find the "pugna duorum" claimed as an ancient privilege 
of the race, with the distinction of its being equestrian, in 
accordance with Gothic usages. 9 

Nor was the wager of battle confined to races of Celtic 
or Teutonic origin. The Slavonic tribes, as they success- 
ively emerge into the light of history, show the same ten- 
dency to refer doubtful points of civil and criminal law to 
the arbitrament of the sword. The earliest records of 

1 In sending Colosseus to govern the Pannonian Goths, Theodoric urges 
strongly the abandonment of the duel, showing how firm a hold it still re- 
tained in those portions of the race which had not been exposed to the full 
civilizing influences of Rome — " Cur ad monomachiam recurritis qui venalem 
judicem non habetis ? Deponite ferrum qui non habetis inimicum. Pessime 
contra parentes erigitis brachium, pro quibus constat gloriose moriendum. 
Quid opus est homini lingua, si eausam manus agat armata ? aut unde pax 
esse creditur, si sub civilitate pugnatur?" — Cassiodor. Variar. Lib. in. 
Epist. xxiii. xxiv. 

3 Ermold. Nigell. De Reb. Gest. Ludov. Pii Lib. in.— Astron. Vit. Ludov. 
Pii cap. xxxiii. So thoroughly was the guilt of Bera considered as proved 
by his defeat in this combat, that his name became adopted in the Catalan 
dialect as synonymous with traitor. — Marca Hispanica, Lib. in. c. 21. 
8 



86 THE WAGER OF BATTLE. 

Hungary, Bohemia, Poland, Servia, Silesia, Moravia, Pom- 
erania, Lithuania, and Russia present evidences of the pre- 
valence of the system. 1 

Arising thus spontaneously from the habits and character 
of so many races, it is no wonder that the wager of battle, 
adapting itself to their various usages, became a permanent 
institution. Its roots lay deep among the recesses of popu- 
lar prejudice and superstition, and its growth was corre- 
spondingly strong and vigorous. In this it was greatly 
assisted by the ubiquitous evils of the facility for perjury 
afforded by the practice of sacramental purgation, and it 
seems to have been regarded by legislators as the only 
remedy for the crime of false swearing which was every- 
where prevalent. Thus Gundobald assumes that its intro- 
duction into the Burgundian code arose from this cause f 
Charlemagne urged its use as greatly preferable to the 
shameless oaths which were taken with so much facility ; 3 
while Otho II., in 983, ordered its employment in various 
forms of procedure for the same reason. 4 It can hardly 
be a source of surprise, in view of the manners of the 
times and of the enormous evils for which a remedy was 
sought, that the effort was made in this mode to impress upon 

1 Konigswarter, op. cit. p. 224. 

2 Multos in populo nostro et pervicatione causantium et cupiditatis in- 
stinctu ita cognosciinus depravari, ut de rebus incertis sacramentum plerum- 
que offere non dubitent, et de cognitis jugiter perjurare," etc. — L. Burgund. 
Tit. xlv. 

The remedy, however, would seem to have proved insufficient, for a subse- 
quent enactment provides an enormous fine (300 solidi) to be levied on the 
witnesses of a losing party, by making them share in the punishment. "Quo 
facilius in posterum ne quis audeat propria pravitate mentire." — L. Bur- 
gund. Tit. Ixxx. § 2. The position of a witness in those unceremonious days 
was indeed an unenviable one. 

3 Ut palam apparet quod aut ille qui crimen ingerit, aut ille qui vult se 
defendere, perjurare se debeat. Melius visum est ut in campo cum fustibus 
pariter contendant, quam perjurium absconse perpetrent. — Capit. Car. Mag. 
ex Lege Longobard. c. xxxiv. (Baluze). 

4 L. Longobard. Lib. ij. Tit. lv. § 34. 



ITS UNIVERSAL APPLICATION. 87 

principals and witnesses the awful sanctity of the oath, thus 
subjecting them to a liability to support their asseverations 
by an appeal to arms under imposing religious ceremonies. 

In the primitive codes of the barbarians, there is no 
distinction made between civil and criminal law. Bodily 
punishment being almost unknown, except with regard to 
slaves, and nearly all infractions of the law being visited 
with fines, there was no necessity for such niceties, the 
matter at stake in all cases being simply money or money's 
worth. Accordingly, we find the wager of battle used in- 
discriminately, both as a defence against accusations of 
crime, and as a mode of settling cases of disputed property, 
real and personal. This gave it a wide sphere of action, 
which was speedily rendered almost illimitable by other 
causes. 

In its origin, the judicial duel was doubtless merely an 
expedient resorted to in the absence of direct or sufficient 
testimon}^, and the judges or rachinborgs were probably 
the arbiters of its necessity. Some of the early codes refer 
to it but seldom, and allude to its' employment in but few 
cases. 1 In others, however, it is appealed to on almost 
every occasion. Among the Burgundians, in fact, we may 
assume, from a remark of St. Agobard, that it superseded 
all evidence and rendered superfluous any attempt to bring- 
forward witnesses. 2 If any limits, indeed, were originally 
imposed, they were not of long duration, for it was not 
difficult to find expedients to justify the extension of a 
custom which accorded so perfectly with the temper of the 
age. How little reason was requisite to satisfy the bellige- 

1 Thus the Salique law, as has heen said above, hardly recognizes the 
existence of the practice. ^The Ripuarian code refers to it but four times, 
that of the Alamanni but six times, while it fairly bristles throughout the 
cognate legislation of the Baioarians. 

3 Apud quorum legem non licet discussione aut veracium testimonio 
causas terminare ; eo quod libuerit, armis comminari lie eat, ne infirmior 
sua retinere aut reposcere audeat, tanquam Veritas armis manifestari egeat. 

Lib. Ad versus Legem Gundobadi cap. x. 



88 THE WAGER OF BATTLE. 

rent aspirations of justice is shown by a curious provision 
in the code of one of the Frisian tribes, by which a man 
unable to disprove an accusation of homicide was allowed 
to charge the crime on whomsoever he might select, and 
then the question between them was decided by combat. 1 

The mode, however, by which the duel gained its greatest 
extension was the custom of challenging witnesses. It 
was a favorite mode of determining questions of perjury, 
and there was nothing to prevent a suitor, who saw his case 
going adversely, from accusing an inconvenient witness of 
false swearing, and demanding the " campus" to prove it — 
a proceeding which adjourned the main case, and likewise 
decided its result. This summary process of course brought 
every action within the jurisdiction of force, and deprived 
the judges of all authority to control the abuse. That it 
obtained at a very early period is shown by a form of pro- 
cedure occurring in the Bavarian law, already referred to, 
by which the claimant of an estate is directed to fight, not 
the defendant, but his witness f and in 819 a capitulary of 
Louis-le-Debonnaire gives a formal privilege to the accused 
on a criminal charge to select one of the witnesses against 
him with whom to decide the question in battle. 3 

Nor was this merely a temporary extravagance. Late 
in the thirteenth century, after enlightened legislators had 
been strenuously and not unsuccessfully endeavoring to 
limit the abuse of the judicial combat, the challenging of 
witnesses was still the favorite mode of escaping legal con- 
demnation. 1 Even in the fourteenth century, the municipal 

1 L. Frision. Tit. xiv. §4. 3 L. Baioar. Tit. xvi. cap. i. § 2. 

3 At si alia vice duo vel tres eum de f urto accusaverint, liceat ei unum ex his 
cum scuto et fuste in campo contendere. — (Caprt. Ludov. Pii ann. 819, cap. 
xv.) When such was the liability impending over witnesses, it is easy to under- 
stand why they were required to come into court armed, and to have their 
weapons blessed on the altar before giving testimony. If defeated, they were 
fined and obliged to make good any damage which their evidence would 
have caused the other side. — L. Baioar. Tit. xvi. c. v. 

4 Beaumanoir, Coutumes du Beauvoisis, chap. Ixi. § 58. 



CHALLENGING OF WITNESSES. 89 

law of Rheims, which allowed the duel between principals 
only in criminal cases, permitted witnesses to be indiscrimi- 
nately challenged and forced to fight, affording them the 
privilege of employing champions only on the grounds of 
ph} T sical infirmity or advanced age. 1 A still more bizarre 
extension of the practice, and one which was most ingeni- 
ously adapted to defeat the ends of justice, is found in the 
English law of the thirteenth century. By this, a man was 
sometimes permitted to challenge his own witnesses. Thus 
a thief on trial could always summon a " warrantor" from 
whom he claimed to have legitimately received the stolen 
property, and if this warrantor declined to give the 
guarantee demanded of him, the accused was at liberty to 
prove his assertion by the duel ; while, if the guarantee was 
forthcoming, the accuser had the same right. 2 Another 
mode extensively used in France about the same time was 
to accuse the principal witness of some crime rendering him 
incapable of giving testimon}^, when he was obliged to dis- 
pose of the charge by fighting, either personally or by 
champion, in order to get his evidence admitted. 3 

It is not easy to imagine any cases which might not thus 
be brought to the decision of the duel ; and the evidence of 
its universality is found in the restriction which prevented 
the appearance as witnesses of those who could not be com- 
pelled to accept the combat. Thus the testimony of women 
and ecclesiastics was not receivable in lay courts in suits 
where appeal of battle might arise; 4 and when in the 

1 Lib. Pract. de Consuetud. Bemens. §§ 14, 40 (Archives Legislat. de 
Reims, Pt. I. pp. 37, 40). 

2 Bracton. de Legibus Angl. Lib. ill. Tract. II. cap. xxxvii. § 5. 

3 Beaumanoir, chap. vi. § 16. 

4 Ibid. chap, xxxix. §§ 30, 31, 66. — Assises de Jerusalem cap. 169. — A 
somewhat similar principle is in force in the modern jurisprudence of Cl-ina. 
Women, persons over eighty or under ten years of age, and cripples who have 
lost an eye or a limb are entitled to buy themselves off from punishment, 
except in a few cases of aggravated crime. They are, therefore, not allowed 
to appear as accusers, because they are enabled by this privilege to escape 

8* 



90 THE WAGER OF BATTLE, 

twelfth century special privileges were granted by the kings 
of France empowering serfs to bear testimony in court, the 
disability which prevented a serf from fighting with a free- 
man was declared annulled in such cases, as the evidence 
was only admissible when the witness was capable of sup- 
porting it by arms. 1 

The result of this system was that, in causes subject to 
such appeals, no witness could be forced to testify, by the 
French law of the thirteenth century, unless his principal 
entered into bonds to see him harmless in case of challenge, 
to provide a champion, and to make good all damages in 
case of defeat; 2 though it is difficult to understand how 
this could be satisfactorily arranged, since the penalties in- 
flicted on a vanquished witness were severe, being, in civil 
causes, the loss of a hand and a fine at the pleasure of the 
suzerain, while in criminal actions 'Ml perderoit le cors 
avecques." 3 The only limit to this abuse was that wit- 
nesses were not liable to challenge in cases concerning 
matters of less value than five sous and one denier. 4 

If the position of a witness was thus rendered unenviable, 
that of the judge was little better. As though the duel had 
not received sufficient extension by the facilities for its em- 
ployment just described, another mode of introducing it in 
all cases was invented by which it became competent for 
the defeated party in any suit to challenge the court itself, 
and thus obtain a reversal of judgment at the sword's 
point. Towards the end of the twelfth century in England, 
we find Grlanville acknowledging his uncertainty as to 
whether the court could depute such a quarrel to a cham- 

the penalties of false witness. — Staunton, Penal Code of China, Sects. 20-22, 
and 339. 

1 The earliest of these, charters is a grant from Louis-le-Gros in 1109 to the 
serfs of the church of Paris, confirmed by Pope Pascal II. in 1113. (Baluz. 
etMansi III. 12, 62.) 

3 Beaumanoir, chap. Ixi. § 59. 

3 Ibid. chap. Ixi. § 57. 

4 Ibid. chap. xl. § 21. 



CHALLENGING OF JUDGES. 91 

pion, or whether the judge delivering the verdict was bound 
to defend it personally ; and also as to what, in case of defeat, 
was the legal position of the court thus convicted of injus- 
tice. 1 These doubts would seem to indicate that the custom 
was still of recent introduction, and not as yet practised to 
an extent sufficient to afford a settled basis of precedents 
for its details. If so, it was not long in firmly establishing 
itself. In 1195, the customs of St. Quentin allow to the 
disappointed pleader unlimited recourse against his judge. 3 
Towards the middle of the thirteenth century, we find in 
the " Conseil" of Pierre de Fontaines the custom in its 
fullest vigor and just on the eve of its decline. No restric- 
tions appear to be imposed as to the cases in which appeal 
by battle was permitted, except that it was not allowed to 
override the customary law. 3 The suitor selected any one 
of three judges agreeing in the verdict ; he could appeal at 
any stage of the proceedings when a point was decided 

1 "Curia . . . tenetur tamen judicium suum tueri per duellum . . . Sed 
utrum curia ipsa teneatur per aliquem de curia se defendere, vel per alium 
extraneum hoc fieri possit, quero." — (De Leg. Anglise Lib. viii. cap. ix.) 
The result of a reversal of judgment must probably have been a heavy fine 
and deprivation of the judicial function, such being the penalty provided for 
injustice in the laws of Henry I. — " Qui injuste judicabit, cxx sol. reus sit et 
dignitatem judicandi perdat." — (L. Henrici I. Tit. xiii. § 4) — which accords 
nearly with the French practice in the time of Beaumanoir, as mentioned 
below. 

It must be borne in mind that, as the dispensing of justice was an attribute 
of the feudal nobility, the judges were generally warriors (except the royal 
judges in England, who were frequently ecclesiastics), and thus these pro- 
ceedings were not as extraordinary as they may at first sight appear to us. 
In Germany, where the judges of the lower courts were elective, they were 
required to be active and vigorous of body — "nee manibus nee pedibus 
captus." — (Jur. Provin. Alaman. cap. Ixviii. § 6.) 

2 Si ille contra quem fit judicium non concedit illud judicium, per campum 
et duellum poterit illud contradicere intra villam S- Quintini, contra illos 
qui judicium fecerint. — Cited by Marnier in his edition of Pierre de Fon- 
taines. 

3 Car poi profiteroient les costumes el pais, s'il s'en covenoit combatre ; 
ne depecier ne les puet-om par bataille. — Edition Marnier, chap. xxn. Tit. 
xxxii. 



92 THE WAGER OF BATTLE. 

against him ; if unsuccessful, he was only liable in a pecu- 
niary penalty to the judges for the wrong done them, and 
the judge, if vanquished, was exposed to no bodily punish- 
ment. 1 The villein, however, was not entitled to the privi- 
lege, except by special charter. 3 The universality of the 
practice is shown by the fact that it was for a long time the 
only mode of reversing a judgment, and an appeal in any 
other form was an innovation introduced by the extension 
of the royal jurisdiction under St. Louis, who labored so 
strenuously and so effectually to modify the barbarism of 
feudal institutions by subordinating them to the principles 
of the Roman jurisprudence. De Fontaines, indeed, states 
that he himself conducted the first case ever known in 
Vermandois of an appeal without battle. 3 At the same 
time, the progress of more rational ideas is manifested by 
his admission that the combat was not necessary to reverse 
a judgment manifestly repugnant to the law, and that, on 
the other hand, the law was not to be set aside by the 
duel. 

Twenty years later, we find in Beaumanoir abundant evi- 
dence of the success of St. Louis in setting bounds to the 
abuses which he was endeavoring to remove. The restric- 
tions which he enumerates are greatly more efficacious than 
those alluded to by de Fontaines. In capital cases, the 

1 Chap. xxii. Tit. i. vi. viii. x. xxvii. xxxi. — "Et certes en fauseraent ne 
gist ne vie ne inembre de eels qui sont fause, en quelconque point que le fause- 
mentsoitfaiz.et quele quelaquerele soit" — (Ibid. Tit. xiv.). If thejudge was 
accused of bribery, however, and was defeated, he was liable to confiscation 
and banishment (Tit. xxvi.). The increasing severity meted out to careless, 
ignorant, or corrupt judges, manifests the powerful influence of the Roman 
law, which, aided by the active efforts of legists, was infiltrating the customary 
jurisprudence and altering its character everywhere. Thus de Fontaines 
quotes with approbation the Code, De poena judicis (Lib. vn. Tit. xlix. 1. 1) 
as a thing rather to be desired than expected, while in Beaumanoir we 
already find its provisions rather exceeded than otherwise. 

2 De Fontaines, chap. xxii. Tit. iii. 

Ibid. Tit xxiii. — Et ce fu li premiers dont je oi'sse onques parler qui fust 
rapelez en Vermandois sanz bataille. 



CHALLENGING OF JUDGE Sf 93 

appeal did not lie; while in civil actions, the suzerain before 
whom the appeal was made could refuse it when the justice 
of the verdict was self-evident. Some caution, moreover, 
was requisite in conducting such cases, for the disappointed 
pleader who did not manage matters rightly might find him- 
self pledged to a combat, single-handed, with all his judges 
at once; and as the bench consisted of a collection of the 
neighboring gentry, the result might be the confirmation 
of the sentence in a manner more emphatic than agreeable. 
An important change is likewise observable in the severe 
penalty imposed upon a judge vanquished in such an ap- 
peal, being a heavy fine and deprivation of his functions in 
civil cases, while in criminal ones it was death and confis- 
cation — "il pert le cors et quanques il a." 1 

The king's court, however, was an exception to the gene- 
ral rule. No appeal could be taken from its' judgments, for 
there was no tribunal before which they could be carried. 3 
The judges of the royal court were therefore safe from the 
necessity of vindicating their decisions in the field, and 
they even carried this immunity with them and communi- 
cated it to those with whom they might be acting. De 
Fontaines accordingly advises the seigneur justicier who 
anticipates the appeal of battle in his court to obtain a royal 
judge to sit with him, and mentions an instance in which 
Philip (probably Philip Augustus) sent his whole council 
to sit in the court of the Abbey of Corbie, when an appeal 
was to be entered. 3 

By the German law of the same period, the privilege of 

1 Coutumes du Beauvoisis, chap. lxi. §§ 36, 45, 47, 50, 62. — It should be 
borne in mind, however, that Beaumanoir was a royal bailli, and the differ- 
ence between the "assise de bailli" and the "assises des chevaliers" is well 
pointed out by Beugnot (Les Olitn, T. II. pp. xxx. xxxi.). Beaumanoir in 
many cases evidently describes the law as he would wish it to be. 

3 Et pour ce ne Ten puet fausser, car Ten ne* trouveroit mie qui droit en 
feist car li rois ne tient de nului fors de Dieu et de luy. — Etablissements, 
Liv. I. chap. Ixxviii. 

a Conseil, ch. xxu. tit. xxi. 



94 * THE WAGER OF BATTLE. 

reversing a sentence by the sworcl existed, but accompanied 
with regulations which seem evidently designed to embar- 
rass, by enormous trouble and expense, the gratification 
of the impulse which disappointed suitors would have to 
establish their claims in such manner. Thus, by the Swa- 
bian law, it could only be done in the presence of the 
sovereign himself, and not in that of the immediate feudal 
superior j 1 while the Saxon code requires the extraordinary 
expedient of a pitched battle, with seven on each side. 2 It 
is not a little singular that the feudal law of the same 
period has no allusion to the custom, all appeals being 
regularly carried to and heard in the court of the suzerain. 3 
Apart from these side issues, the right of demanding the 
wager of battle as between the principals varied much with 
the age and race. When Beaumanoir composed his " Cou- 
tumes du Beauvoisis," in 1283, the practice may be con- 
sidered to have entered upon its decadence ; twenty years 
had elapsed since the determined efforts of St. Louis to 
abolish it ; substitutes for it in legal processes had been 
provided; and the manner in which that enlightened jurist 
manifests his preference for peaceful forms of law shows 
that he fully appreciated the civilizing spirit in which the 
monarch had endeavored to soften the ferocity of his sub- 

1 Si contingat ut de justitia sententiae pugnandum sit, ilia pugna debet 
institui coram rege — (Jur. Provin. Ataman, cap. xcix. § 5). In a French 
version of this code, made probably towards the close of the fourteenth cen- 
tury, the purport of this passage is entirely changed. ' ' De chascun iugemant 
ne puet tan trover leaul ne certain consoil si bien come per lo consoil de 
sages de la cort lo roi." — Miroir de Souabe, P. I. c. cxiii. (Ed. Matile,Neuf- 
chatel, 1843). We may hence conclude that by this period the custom of 
armed appeal was disused, and the extension of the royal jurisdiction was 
established. 

3 Jur. Provin. Saxon. Lib. i. art. 18. — This has been questioned by modern 
critics, but there seems to be no good reason for doubting its authority. The 
whole formula for the proceeding is given in the Richstich Landrecht (cap. 
41), a manual of procedure of the fourteenth century, adapted to the Saxon 
code. 

3 Richstich Lehnrecht, cap. xxvii. 



RESTRICTIONS ON THE DUEL. 95 

jects. When, therefore, we see in Beaumanoir's treatise 
how few restrictions existed in his time, we may compre- 
hend the previous universality of the custom. In criminal 
cases, if an accuser offered battle, the defendant was forced 
either to accept it or to confess his guilt, unless he could 
prove an alibi, or unless the accuser was himself notoriously 
guilty of the crime in question, and the accusation was 
evidently a mere device to shift the guilt to the shoulders 
of another; or unless, in case of murder, the victim had 
disculpated him, when dying, and had named the real 
criminals. 1 If, on the other hand, the accused demanded 
to wage his battle, the judge could only refuse it when his 
guilt was too notorious for question. 3 A serf could not 
challenge a freeman, nor a bastard a man of legitimate 
birth (though an appeal of battle might lie between two 
bastards), nor a leper a sound man. 3 In civil actions, the 
battle trial was not allowed in cases relating to dower, to 
orphans under age, 4 to guardianships, or to the equity of 
redemption afforded by the feudal laws to kinsmen in the 
sale of heritable property, or where the matter at stake was 
of less value than twelve deniers. 5 St. Louis also prohibited 
the duel between brothers in civil cases, while permitting 
it in criminal accusations. 6 The slenderness of these re- 
strictions shows what ample opportunities were afforded 
to belligerent pleaders. 

In Germany, as a general rule, either party had a right to 
demand the judicial combat, 7 subject, however, in practice 

1 Coutumes du Beauvoisis, chap. lxi. § 2 ; chap, xliii. § 6. 

2 Ibid. chap. lxi. § 2 ; chap, xxxix. § 12. 

3 Ibid. chap. Ixiii. §§ 1, 2, 10. 

4 Twenty-one years is the age mentioned by St. Louis as that at which a 
man was liable to be called upon to fight. — Etablissements, Liv. I. chap. 
Ixxiii., cxlii. 

5 Coutumes du Beauvoisis, chap. Ixiii. §§ 11, 13, 18. The denier was the 
twelfth part of the solidus or sou. 

G Etablissements, Liv. i. chap, clxvii. 

7 Jur. Provin. Alaman. cap. clxvi. §$ 13, 27; cap. clxxvii. 



96 THE WAGER OF BATTLE. 

to several important limitations. Thus difference of rank 
between the parties afforded the superior a right to decline 
a challenge, as we shall see more fully hereafter. 1 Rela- 
tionship between the contestants was also an impediment, 3 
and even the fact that the defendant was not a native of 
the territory in which the action was brought gave him the 
privilege of refusing the appeal. 3 Still, we find the principle 
laid down even in the fourteenth century that cases of 
homicide could not be determined in any other manner. 4 
There were circumstances, indeed, in which the complain- 
ant, if he could bring the evidence of seven witnesses in his 
favor, could decline the duel ; but if he chose to prove the 
charge by the combat, no examination or testimony was 
admitted. 5 Yet a general rule is found expressed to the 
effect that it was necessary only in cases where no other 
evidence was obtainable, when the result could be safely 
left to the judgment of Omniscience. 6 

By the English law of the thirteenth century, a man 
accused of crime had the right of election between trial 
by jury and the wager of battle in doubtful cases only. 
When a violent presumption existed against him, he was 
obliged to submit to the verdict of a jury; but in cases of 
suspected poisoning, as satisfactory evidence was deemed 
unattainable, the accused had only the choice between con- 

1 As early as the time of Frederic Barbarossa this rule was strictly laid 
down. "Si miles adversus militem pro pace violata aut aliqua capitali causa 
duellum committere voluerit, facultas pugnandi ei non concedatur nisi pro- 
bare possit quod antiquitus ipse cum parentibus suis natione legitimus miles 
existat." — Feudor. Lib. n. Tit. xxvii. § 3. 

2 Jur. Provin. Alaman. cap. ccclxxxvi. § 2. 

3 Ibid. cap. ccxcii. § 2. 

4 Sed scias si de perpetrato homicidio agitur, probationem sine duello non 
procedere. — Richstich Landrecht, cap. xlix. 

5 Jur. Provin. Alaman. cap. ccclxxxvi. §§ 28, 29 (Ed. Schilteri). 

G Hinc pervenit dispositio de duello. Quod enim homines non vident Deo 
nihilominus notum est optime, unde in Deo confidere possumus, eum duellum 
secundum jus diremturum. — Jur. Provin. Alaman. cap. clxviii. § 19 (Ed. 
Senckenberg). 



RESTRICTIONS ON THE DUEL. 91 

fession and the combat. 1 On the other hand, when the 
appellant demanded the duel, he was obliged to make out 
a probable case before it was granted. 2 When battle had 
Ibeen gaged, however, no withdrawal was permitted, and 
any composition between the parties to avoid it was punish- 
able by fine and imprisonment 3 — a regulation, no doubt, 
intended to prevent pleaders from rashly undertaking it, 
and to obviate its abuse as a means of extortion. Any 
bodily injury on the part of the plaintiff, tending to render 
him less capable of defence or aggression, likewise deprived 
the defendant of the right to the wager of battle, and this 
led to such nice distinctions that the loss of molar teeth was 
adjudged not to amount to disqualification, while the 
absence of incisors was considered sufficient excuse, be- 
cause they were held to be important weapons of offence. 4 
Thus the knight who demanded that his antagonist should 
undergo the destruction of an eye to equalize the loss 
of his own, extinguished in the fight of Otterbourne, was 
strictly within the privileges accorded him by law. Not- 
withstanding these various restrictions, cases of treason 
were almost always determined by the judicial duel, ac- 
cording to both Glanville and Bracton. 5 This was in direct 

1 Bracton. Lib. in. Tract, ii. cap. 18. 2 Ibid. cap. 23 § 1. 

3 Si autem uterque defaltam fecerit, et testatum sit quod concordati 
fuerunt, uterque capiatur, et ipsi et plegii sui in misericordia. — Ibid. 

The custom with regard to this varied greatly according to local usage. 
Thus a charter of the Count of Forez in 1270 concedes the right of avoiding 
battle, even at the last moment, by satisfying the adversary, and paying a 
fine of sixty sols. — Chart. Raynaldi Com. Forens. c. 4 (Bernard, Hist, du 
Forez, T. I. Preuves, p. 25). According to the customs of Lorris, in 1155, 
if a composition was effected after battle had been gaged and before security 
was given, each party paid a fine of two sous and a half. If after security 
was pledged, the fine was increased to seven sous and a half. — Chart. Ludov. 
Junior, ann. 1155, cap. xiv. (Isambert, Anciennes Lois Francaises, I. 155.) 

4 Bracton. Lib. in. Tract, ii. cap. 24 § 4. — Hujusmodi vero dentes mul- 
tum adjuvant ad devincendum. 

5 Glanvil. Lib. xiv. cap. i. — Bracton. Lib. ill. Tract, ii. cap. 3 § 1. 
Solet appellum istud per duellum terminari. 

9 



98 THE WAGER OF BATTLE. 

opposition to the custom of Lombardy, where such cases 
were especially exempted from decision by the sword. 1 

In Beam, the duel was permitted at the option of the 
accuser in cases of murder and treason, but in civil suits 
only in default of testimony. 2 That in such cases it was in 
common use is shown by a treaty made, in the latter part of 
the eleventh century, between Centulla I. of Beam and the 
Yiscount of Soule, in which all doubtful questions arising 
between their respective subjects are directed to be settled 
by the combat, with the singular proviso that the com- 
batants shall be men who have never taken part in war. 3 
In the thirteenth century, however, a provision occurs 
which must have greatly reduced the number of duels, as it 
imposed a fine of only sixteen sous on the party who made 
default, while if vanquished he was visited with a mulct of 
sixty sous and the forfeiture of his arms. 4 

In some regions, greater restrictions were imposed on the 
facility for such appeals to the sword. In Catalonia, for 
instance, the judge alone had the power of deciding whether 
they should be permitted, 5 and a similar right was reserved 
to the podesta in a code of laws enacted at Yerona in 1228. 6 
This must often have prevented the ^injustice inherent in 
the system, and an equally prudent reserve was exhibited in 
a statute of Montpellier, which required the assent of both 
parties. 7 On the other hand, in Normandy, at the com- 
mencement of the thirteenth century, many cases relating 
to real estate were examined in the first instance by a jury 

1 Non est consuetude* Mediolani ut de felonia aut de infidelitate pugna 
fiat ; licet contrarium sit, quod prsecipit lex Longobardorum, ut de infideli- 
tate pugna fiat. — Feudor. Lib. n. Tit. xxxix. 

2 For de Morlaas, Rubr. xxxviii. xxxix. 

3 Marca, Hist, de Beam, p. 293 (Mazure et Hatoulet). 

4 For de Morlaas, Rubr. iv. 

6 Libell. Catalan. MS. (Du Cange.) 

G Meo arbitrio determinabo duellum, vel judicium judicabo. — L. Munic. 
Veronens. cap. 78 (Muratori Antiq. Ital. Dissert. 39). 
1 Statut. Montispess. ann. 1204 (Du Cange). 



MINIMUM VALUE AT ISSUE. 99 

of twelve men, and if they failed of an unanimous verdict, 
the question was decided by the duel, whether the parties 
were willing or not. 1 

From a very early period, a minimum limit of value was 
established, below which a pugnacious pleader was not 
allowed to put the life or limb of his adversary in jeopardy. 
This varied of course with the race and the period. Thus, 
among the Angli and Werini, the lowest sum for which 
the combat was permitted was two solidi, 3 while the Bai- 
oarians established the limit at the value of a cow. 3 In 
the tenth century, Otho II. decided that six solidi should 
be the smallest sum worth fighting for. 4 The laws of 
Henry I. of England decreed that in civil cases the appeal 
of battle should not lie for an amount less than ten solidi. 5 
In France, Louis-le-Jeune, by an edict of 1168, forbade the 
duel when the sum in debate was less than five sous, 8 and 
this remained in force for at least a century. 7 The custom 

1 Etablissements de Normandie, passim (Edition Marnier). 

3 L. Anglior. et Werinor. Tit. xv. The variations in the coinage are so 
numerous and uncertain, that to express the values of the solidus or sou, at 
the different periods and among the different races enumerated, would occupy 
too much-space. In general terms, it may be remarked that the Carlovingian 
solidus was the twentieth part of a pound of silver, and, according to the 
researches of Guerard, was equivalent in purchasing power to about thirty- 
six francs of modern money. The marc was half a pound of silver. 

3 L. Baioar. Tit. vm. cap. ii. § 5; cap. iii. 

4 L. Langobard. Lib. n. cap. lv. § 37. 
8 L. Henrici I. cap. 59. 

6 Isambert, Anciennes Lois Francaises, I. 162. This occurs in an edict 
abolishing sundry vicious customs of the town of Orleans. It was probably 
merely a local regulation, though it has been frequently cited as a general 
law. 

7 Livres de Jostice et de Plet, Liv. xix. Tit. xvii. § 3, and Tit. xxii. § 4. 
See also a coutumier of Anjou of the same period (Anciens Usages d'Anjou, 
§ 32.— Marnier, Paris, 1853). 

The " Livre de Jostice et de Plet" was the production of an Orleannais, 
which may account for his affixing the limit prescribed by the edict of Louis^ 
le-Jeune. The matter was evidently regulated by local custom, since, as 
we have already seen, his contemporary, Beaumanoir (cap. lxiii. § 11), 
names twelve deniers, or one sou, as the minimum. 



100 THE WAGER OF BATTLE. 

of Normandy in the thirteenth century specifies ten sous 
as the line of demarcation between the "lex apparens" 
and the " lex simplex" in civil suits, 1 and the same provi- 
sion retains its place in the Coutumier in use until the 
sixteenth century. 3 In the Frankish kingdom of Jerusalem, 
the minimum was a silver marc. 3 A law of Aragon, in 
1247, places the limit at ten sous. 4 By the criminal pro- 
cedure in England, at about the same period, the duel was 
prescribed only for cases of felony or crimes of importance, 
and it was forbidden in trifling misdemeanors. 5 The con- 
temporary law of German}^ provides that in accusations 
of personal violence, the duel was not to be allowed, unless 
the injury inflicted on the complainant had been sufficiently 
serious to cause permanent maiming, 6 thus showing how 
thoroughly different in spirit was the judicial combat from 
the modern code of honor which has been affiliated upon it. 
No rank of life procured exemption from the duel be- 
tween antagonists of equal station. When in 1002, on the 
death of Otho III., the German throne was filled by the 
election of Henry the Lame, Duke of Bavaria, one of his 
disappointed competitors, Hermann, Duke of Swabia, is said 
to have demanded that their respective claims should be 
determined by a judicial combat, and the new king, feeling 
himself bound to accept the wager of battle, proceeded to 
the appointed place, and waited in vain for the appearance 
of his antagonist. 7 Thus the champion of England, who 

1 Cost. Leg. Norman. P. n. cap. xxi. § 7 (Ludewig, Reliq. MSS. VII. 307.) 
The judgment of God was frequently styled " Lexapparens" or "paribilis." 

2 Anc. Coutum. de Normandie, cap. 87 (Bourdot de Richebourg, IV. 55). 

3 Assises de Jerusalem, cap. 149. 

4 Laws of Huescar, by Don Jayme I. (Du Cange s. v. Torna). 

8 Poterit enim factum esse ita leve quod non jacebit appellum, ut si levis 
transgressio sit, vel si simplex injuria. — Bracton. Lib. in. Tract, ii. cap. 
19 § 6, also cap. 23 § 2. 

6 Ob alia autem vulnera haud ita gravia, duellum non permittitur. — Jur. 
Provin. Alaman. cap. clxxii. § 20 (Ed. Senckenberg). 

1 Dithmari Chron. Lib. v. 



NO CLASS EXEMPTED. 101 

figures in the coronation pageant of Westminster Abbey, 
is a relic of the times when it was not an idle ceremony 
for the armed and mounted knight to fling the gauntlet 
and proclaim aloud that he was ready to do battle with 
any one who challenged the right of the new monarch to 
his crown. 1 A striking example of the liability attaching 
to even the most exalted rank is afforded by a declaration 
of the privileges of the Duchy of Austria, granted by 
Frederic Barbarossa in 1156, and confirmed by Frederic 
II. in 1245. These privileges rendered the dukes virtually 
independent sovereigns, and among them is enumerated 
the right of employing a champion to represent the reign- 
ing duke when summoned to the judicial duel. 2 Even 
more instructive is the inference deducible from the For 
de Morlaas, granted to his subjects by Gaston TV. of Beam 
about the year 1100. The privileges contained in it are 
guaranteed by a clause providing that, should they be in- 
fringed by the prince, the injured subject shall substantiate 
his complaint by his simple oath, and shall not be com- 
pelled to prove the illegality of the sovereign's acts by the 
judicial combat, 3 thus indicating a pre-existing custom of 
the duel between the prince and his vassals. 

International litigation, even, was subject to the same 
arbitrament. Allusion has already been made to the chal- 
lenge which passed between Charles of Anjou and Pedro 
of Aragon, and other instances might readily be given, 
such as that of the Emperor Henry III. and Henry I. of 
France during their interview at Ipsch in 1056. 4 These may 
perhaps be regarded rather as personal than national quar- 

1 From the time of Henry I., the office of king's champion was one of 
honor and dignity. (See Spelman's Glossary.) 

3 Insuper potest idem Dux Austria, cum impugnatus fuerit ab aliquo de 
duello, per unum idoneum non in enormitatis macula detentum vices suas 
prorsus supplere. — Constit. Frid. II. ann. 1245, cap 9. (Goldast. Const. 
Imp. I. 303) 

3 For de Morlaas, Rubr. xxvi. 

4 Lambert. Schaffnaburg. ann. 1056. 



102 THE WAGER OP BATTLE. 

rels, but that distinction does not apply to a case which 
occurred in 1034, when the Emperor Conrad the Salique 
endeavored to pacify the Saxon Marches. On inquiring 
into the origin of the mutual devastation of the neighbor- 
ing races, the Saxons, who were really in fault, offered to 
prove by the duel that the Pagan Luitzes were the aggres- 
sors, trusting that their Christianity would counterbalance 
the injustice of their cause. The defeat of their champion 
by his heathen adversary was, however, a memorable ex- 
ample of the impartiality of God, and was received as a 
strong confirmation of the value of the battle trial. 1 

As regards the inferior classes of society, innumerable 
documents attest the right of peasants to decide their 
quarrels by the ordeal of battle. By the old Lombard law, 
slaves were allowed to defend themselves in this manner; 2 
and they could even employ the duel to claim their liberty 
from their masters, as we may infer from a law of King Grim- 
oald denying this privilege to those who could be proved 
to have served the same master for thirty continuous years. 3 
Similarly, among the Frisians, a litus claiming his liberty 
was allowed to prove it against his master Vith arms. 4 
The institutions of feudalism widened the distance between 
the different classes of society, and we have already seen 
that, in the thirteenth century, serfs were enfranchised in 
order to enable them to support their testimony by the 
combat ; yet this was only the result of inequality of rank. 
In the time of Beaumanoir (1283), though an appeal would 
not lie from a serf to a freeman, it may be safely inferred 
from the context that a combat could be legally decreed 
between two serfs, if the consent of their masters were 
obtained, 5 and other contemporary authorities show that a 

1 Wippo. Vit. Chunradi Salici. 

3 L. Longobard. Lib. i. Tit. xxv. § 49. Servus ejus tunc per pugnam aut 
per saeramentum se defendat si potuerit. 

3 Ibid. Lib. i. Tit. ix. § 38. 4 L. Frision. Tit. xi. cap. iii. 

5 Coutumes du Beauvoisis, cap. lxiii. § 1. 



DIFFERENCE OF RANK. 103 

man claimed as a serf could defend his freedom with the 
sword against his would-be master. 1 Even Jews were held 
liable to the appeal of battle, as we learn from a decision 
of 120Y, preserved in an ancient register of assizes in Nor- 
mandy, 2 and they no doubt purchased the exemption, which 
was granted them, except in cases of flagrant murder, by 
Philippe-le-Long, as a special favor, in 1317. 3 

Difference of condition thus became an impediment to the 
duel, and formed the subject of many regulations, varying 
with circumstance and locality. The free mountaineers of 
Beam, as has been seen, placed the prince and the subject 
on an equality before the law, but this was a rare example 
of independence, and the privileges of station were some- 
times exhibited in their most odious form. In France, for 
instance, while the battle trial could take place between the 
gentilhomme and the vilain, the former was secured by the 
distinction that if the villein presumed to challenge him, 
he enjoyed the right of fighting on horseback with knightly 
weapons, while the challenger was on foot and armed only 
with shield and staff; but if the gentleman condescended 
to challenge* the villein, they met on equal terms. 4 In Ger- 
many, where the minute distinctions of birth were guarded 

1 Livres de Jostice et de Plet, Liv. xix. Tit. 13. — Abnegavit se esse servum 
S. Martini, et de hoc arramivit bellum contra nos. — Tabul. Vindocinens, 
cap. 159 (Du Cange, s. v. adramire). 

3 Assises de l'Echiquier de Normandie, p. 114 (Marnier). 

3 Lauriere, Table Chron. des Ordonnances, p. 105. 

4 Beaumanoir, op. cit. cap. Ixi. §§9, 10.— Etablissements de S. Louis, 
Liv. i. chap, lxxxii. — Pierre de Fontaines, however, repudiates this bar- 
barous custom in cases of appeal, and directs that the combat shall take 
place on foot between champions — (Conseil, chap. xxi. Tit. xiv.). Beau- 
manoir mentions a case which shows that practical justice was not un- 
frequently enforced without ceremony. A gentleman challenged a roturier, 
and presented himself in the arena on horseback with his knightly arms. 
The defendant reclaimed against the injustice, and the judges decided that 
the gentleman forfeited his horse and arms, and that if he desired to accom- 
plish the combat he must do so in the condition in which he was left by the 
disarmament — in his shirt, without weapon or shield, while his adversary re- 
tained his coat of mail, tnrget, and club. — (Cout. de Beauvoi. cap. lxiv. \ 3.) 



104 THE WAGER OF BATTLE. 

with the most jealous care from a very early period, the 
laws of the thirteenth century provide that a difference of 
rank permitted the superior to decline the challenge of an 
inferior, while the latter was obliged to accept the appeal of 
the former. So thoroughly was this principle carried into 
practice, that, to compel the appearance of a Semperfri, 
or noble of sixteen quarterings, the appellant was obliged 
to prove himself of equally untarnished descent.* In the 
same spirit, a Jew could not decline the appeal of battle of- 
fered by a Christian accuser, though we may safely infer 
that the Jew could not challenge the Christian. 3 So, in the 
Latin kingdom of Jerusalem, the Greek, the Syrian, and the 
Saracen could not challenge the Frank, but could not, in 
criminal cases, decline the challenge of a Christian, though 
they might in civil suits. 3 In Aragon, no judicial duel was 
permitted between a Christian and a Jew or a Saracen, 4 
while in Castile both combatants had to be gentlemen, 
quarrels between parties of different ranks being settled by 
the courts. 5 

There were three classes — women, ecclesiastics, and those 
suffering under physical incapacity— with whom personal 
appearance in the lists would appear to be impossible. 
When interested in cases involving the wager of battle, 
they were therefore allowed the privilege of substituting a 
champion, who took their place and did battle for the jus- 

1 Jur. Provin. Alamann. cap. ccclxxxv. §§ 14, 15 (Ed. Sehilter). Ac- 
cording to some MSS., however, this privilege of declining the challenge 
of an inferior was not allowed in cases of homicide. — " Ibi enim corpus 
corpori opponitur." — cap. liii. § 4. (Ed. Senckenherg.) On the other 
hand, a constitution of Frederic Barbarossa, issued in 11 68 and quoted above, 
forbids the duel in capital cases, unless the adversaries are of equal birth. 

3 Ibid. cap. cclviii. § 20 (Ed. Sehilter). — We have already seen that 
the converse of this rule was introduced in England, as regards questions 
between Frenchmen and Englishmen, by William the Conqueror. 

3 Quia surien et greci in omnibus suis causis, praster quam in criminalibus 
excusantur a duello. — Assises de Jerusalem, Baisse Court, cap. 269. 

4 Laws of Huescar, ann. 1247. (Du Cange s. v. Torna.) 

5 Las Siete Partidas, P. vn. Tit. iii. 1. 3. 



WOMEN AS DUELLISTS. 105 

tice of their cause. So careful were legislators to prevent 
any failure in the procedure prescribed by law, that the 
Assises de Jerusalem ordered the suzerain to supply the 
expenses for forty days, when a suitor unable to fight was 
also too poor to pay for a champion to take his place ; and 
when a murdered man left no relatives to prosecute the 
murderer, the suzerain was likewise obliged to furnish the 
champion in any trial that might arise. 1 Equally directed 
to the same purpose was the German law which provided 
that when a crippled defendant refused or neglected to 
procure a substitute, the judge was to seize one-half of 
his property with which to pay the services of a gladiator, 
who could claim nothing more. 3 

Women, however, did not always restrict themselves to 
fighting thus vicariously. The German laws refer to cases 
in which a woman might demand justice of a man person- 
ally in the lists, and not only are instances on record in 
which this was done, but it was of sufficiently frequent oc- 
currence to have an established mode of procedure, which 
is preserved to us in all its details by illuminated MSS. of 
the period. 3 The chances between such unequal adversaries, 
were equalized by burying the man to his waist, tying his 
left hand behind his back, and arming him only with a 
mace, while his fair opponent had the free use of her limbs 
and was provided witTi a heavy stone securely fastened in 
a piece of stuff. 4 

1 Assises de Jerusalem, cap. 266, 267. 

3 Si hoc facere non vult paralyticus ille, tunc judex mediante pecunia 
paralytici, campionem aliquem adsciscere debet, huic paralyticus semissem 
bonorum dare debet, et nihil am plius. — Jur. Provin. Alamann. cap. Ix. § 5. 

3 Jur. Provin. Alamann. cap. ccxxix. § 2. This chapter is omitted in 
the French version of the Speculum Suevicum. 

4 Konigswarter, op. cit. p. 221. — In many places, however, crimes which 
a man was forced to disprove by combat, were subject to the ordeal of hot 
iron or water when the accused was a woman. Thus by the Spanish law of 
the thirteenth century " Muger . . salvese por fierro caliente ; e si varon 
fuere legador . . salvese por lid." — Fuero de Baeca. (Villadiego, Fuero 
Juzgo fol. 317".) 



106 THE WAGER OP BATTLE. 

The liability of ecclesiastics to the duel varied with the 
varying relations between the church and state. As early 
as the year 819, Louis-le-Debonnaire, in his additions to the 
Salique law, directs that, in doubtful cases arising between 
laymen and ecclesiastics, the duel between chosen witnesses 
shall be employed, but that when both parties are clerical 
it shall be forbidden. 1 This restriction was not long ob- 
served. A decree of the Emperor Guy, in 892, gives to 
churchmen the privilege of settling their quarrels either by 
combat or by witnesses, as they might prefer f and about 
the year 945, Atto of Yercelli complains that the tribunals 
allowed to ecclesiastics no exemption from the prevailing 
custom. 3 Yet so far was this from being deemed a hard- 
ship by the turbulent spirits of the period, that clerks not 
unfrequently disdained to sustain their rights by the inter- 
vention of a champion, and, yielding to warlike aspirations, 
boldly entered the lists themselves. In 1080 the Synod of 
Lillebonne adopted a canon punishing by a fine such bel- 
ligerent churchmen as indulged in the luxury of duels 
without having first obtained from their bishops a special 
license authorizing it.* About the same period, Geoffry, 
abbot of Yendome, in a letter to the Bishop of Saintes, 
complains of one of his monks who had fought in a judicial 
duel with a clerk of Saintes. 5 The practice continued, and 
though forbidden by Pope Innocent II. in 1140, 6 Alexander 
III. and Clement III. found it necessary to repeat the pro- 
hibition before the close of the century, 7 and soon after- 

1 Capit. Ludov. Pii I. aim. 819, cap. x. 

2 Ughelli, T. II. p. 122 (Du Cange). 

3 Addunt insuper, quoniam si aliquis militum sacerdotes Dei in erimine 
pulsaverit per pugnam sive singulari eertamine esse decernendum. — De Pres- 
sures Eceles. 

4 Clericus ... si duellum sine episeopi licentia susceperit . . . aut assultum 
feeerit, episcopis per peeuniam ernendetur. — Orderie. Vital. P. n. Lib. v. c. 5. 

5 Goffrid. Vindocinens. Lib. in. Epist. 39. 6 Du Cange. 

1 Ut elerici non pugnent in duello, nee pro se pugiles introducent.— Chron. 
S. JEgid. in Brunswig. — Can. 1. Extra. Lib. v. Tit. xiv. 



ECCLESIASTICAL DUELS. 101 

wards Celestin III. was forced to pronounce sentence of 
deposition in a case of this nature submitted to him. 1 All 
this was formally and peremptorily confirmed by Innocent 
III. at the great council of Lateran in 1215. 3 

That the peaceful ministers of Christ should vindicate 
their rights with the sword, either personally or by proxy, 
was a sacrilege abhorrent to pious minds. As early as the 
middle of the ninth century, Nicholas I., who did so much 
to establish the supremacy of the church, endeavored to 
emancipate it from this necessity, and declared that the 
duel was not recognized by the ecclesiastical law. 3 The 
utmost privilege accorded the clergy, however, was the 
right of presenting a champion in the lists, which zealous 
churchmen naturally resented as an arbitrary injustice. 4 
How thoroughly it was carried out in practice, notwith- 
standing all remonstrances, is shown by a charter granted 
in 1024 by St. Stephen of Hungary to the monastery of 
St. Adrian of Zala, by which, among other privileges, the 
pious king bound himself to supply a champion in all suits 
against the abbey, in order that the holy meditations of 
the monks might not be interrupted. 5 It was long before 
the abuse was removed. In 1112 we find a certain Guil- 
laume Maumarel, in a dispute with the chapter of Paris 
concerning some feudal rights over the domain of Sucy, 
appearing in the court of the Bishop of Paris for the pur- 
pose of settling the question by the duel, and though the 
matter was finally compromised without combat, there does 

1 Can. 2 Extra. Lib. v. Tit. xiv. 2 Concil. Lateran. IV. can. 18. 

3 Mononiachiam in legem non assurnimus, quam antecessores nostros 
minime accepisse cognovimus. — Cap. Monomachiam cans. n. q. 5. — Nicolai 
PP. I. Epist. 148. 

4 Ad pugnam sacerdotes impingere quaerunt, nullam amplius reverentiam 
ipsis observantes, nisi quod non propriis raanibus, sed per submissos illis in 
tali discrimine judicant diinicare. — Atton. Vercell. De Pressuris Eccles. 
Pt. I. 

5 Chart. S. Stepbani (Batthyani, Legg. Eccles. Hung. T. I. p. 384). 



108 THE WAGER OF BATTLE. 

not seem to have been anything irregular in his proceeding. 1 
So, abont the same period, in a case of disputed property 
between the abbey of St. Aubin in Anjon and a neighboring 
knight, the monks not only challenged their adversary, 
but the duel was held in the seignorial court of another 
monastery; 2 and in 1164, we find a duel decreed at Monza, 
by the Archbishop of Cologne as chancellor of Italy, be- 
tween an abbey and a layman of the vicinity. 3 That such 
cases, indeed, were by no means uncommon is shown by 
their special prohibition in 1195 by Celestin III. 4 Yet, not- 
withstanding the repeated efforts of the Holy See, it was 
almost impossible for the church to exempt itself from the 
universal liability. Though in 1114 Louis TIL granted a 
special privilege of exemption to the church of Jusiers and 
its men, on the ground that he was bound to abrogate all 
improper customs, 5 still no general reform appears to have 
been practicable. As late as the year 1245, some vassals 
of the chapter of Notre Dame at Paris denied the service 
due by them, and demanded that the claim of the chapter 
should be made good by the wager of battle. That they 
had a legal right to do so is shown by the fact that the 
churchmen were obliged to implore the intervention of the 
Pope ; and Innocent IY. accordingly granted to the chapter 
a special privilege, in which, on the ground that single 
combats were forbidden by the canons, he declared that 
the church of Notre Dame should be entitled to prove its 
rights by witnesses, deeds, and other legitimate proofs, 
notwithstanding the custom existing to the contrary. 6 

1 Cartulaire de 1'Eglisede Paris, I. 378: 

2 The charter relating to the suit and its results is given by Baluze and 
Mansi, Miscell. III. 59. 

3 Ibid. p. 134. 4 Can. 1 Extra, Lib. v. Tit. xxxv. 

5 Tenemur pravas consuetudines funditus extirpare. — (Du Boys, Droit 
Crioiinel des Peuples Modernes, II. 187.) 

6 Contraria consuetudine non obstante. — Cart, de 1'Eglise de Paris, II. 
393-4. 



ECCLESIASTICAL JURISDICTION. 109 

These individual exceptions only prove the universality 
of the rule. It is therefore not surprising to find that 
prelates, acting in their capacity of temporal seigneurs, 
should have been accustomed to award the duel as freely 
as any other form of legal procedure. To do this was not 
only one of the privileges which marked the feudal supe- 
rior, but was also a source of revenue from the fees and 
penalties thence accruing, and these rights were as eagerly 
sought and as jealously guarded by the spiritual lords as 
by the warlike barons. It would scarce be necessary to 
multiply instances, but I may mention a charter granted 
by Fulk Nera, Count of Anjou, about the year 1010, be- 
stowing these rights on the abbey of Beaulieu in Touraine, 1 
and one by the Emperor Henry III., in 1052, to the bishop 
and church of Volaterra in Italy. 2 Some conscientious 
churchmen objected to a practice so antagonistic to all the 
teachings of the. religion of which they were professors, 
and lifted up their voices to check the abuse. Thus, about 
the close of the eleventh century, we find the celebrated 
canonist, St. Ivo of Chartres, rebuking the Bishop of Or- 
leans for ordering the combat to decide an important suit 
in his court. 3 Ivo even carried out his principles to the sacri- 
fice of the jurisdiction usually so dear to the prelates of 
his day, for in another case he refused to give judgment be- 
cause it necessarily involved a trial by battle, and he eluded 
the responsibility by transferring the cause to the court of 
the Countess of Chartres. 4 His precept and example were 
equally unavailing. Churchmen continued to award the 
wager of battle, and resolutely resisted any invasion of 
their privileges. In 1150 the statutes of the chapter of 

1 Du Cange, s. v. Bellum. 

3 Muratori, Antiq. Ital. Dissert. 39. — Among various other examples given 
by the same author is one of the year 1010, in which the court of the bishop 
of Aretino grants the combat to decide a case between a monastery and a 
layman. 

3 I von. Epist. cxlviii. * Ibid. Epist. ccxlvii. 

10 



110 THE WAGER OP BATTLE. 

Lausanne direct that all duels shall be fought before the 
provost, — and the provost was Arducius, Bishop of Geneva. 1 
Even in the thirteenth century, in the archbishop's court 
or officiality of Rheims the duel was a matter of course f 
and in a judgment rendered in 1269, concerning a combat 
waged within the jurisdiction of the chapter of Notre Dame 
of Paris, we find that the first blows of the fight, usually 
known as "ictus regis" or "les cous lou roi," are alluded to 
as " ictus capituli." 3 How eagerly these rights were main- 
tained is apparent from numerous decisions concerning 
contested cases. Thus an agreement of 1193, between the 
Countess of St. Quentin and the chapter of Notre Dame, 
respecting the disputed jurisdiction of the town of Yiry, 
gives the official of the chapter the right to decree duels, 
but places the lists under the supervision of both par- 
ties, and divides the spoils equally between each. 4 A 
charter of 1199, concerning the village of Marne, shows 
that the sergeant, or officer of the chapter, had the cogni- 
zance of causes up to the gaging of battle, after which 
further proceedings were reserved for the court of the 
bishop himself. 5 In 1257, while St. Louis was exerting 
himself with so much energy to restrict the custom, an 
abbey is found engaged in a suit with the crown to prove 
its right to decree the duel, and to enjoy the fees and 
mulcts thence arising. 6 Even more significant is a declara- 
tion of the authorities of Metz, as late as 1299, by which 
the^ granting of all wagers of battle is expressly admitted 
to appertain to the court of the archbishop by the civil 
magistrates of the city; 7 and even in 1311 a bishop of 

1 Migne's Patrologia, T. 188, p. 1287. 

2 Lib. Pract. de Consuetud. T&emens. passim (Archives Legisl. de Rheims). 

3 Cartulaire de l'Eglise de Paris, III. 433. After the first blows, the par- 
ties could be separated on payment of a fine to the court, from the recipient 
of which the name is evidently derived. 

4 Cartulaire de l'Eglise de Paris. I. 234. 6 Ibid., I. 79-80. 

6 Les Olim, I. 24. 

7 Faisons cognussant a tous que des arramies des champs et des batailles 






MERCANTILE LAW. Ill 

St. Brieuc ordered a duel between two squires pleading in 
his court, in consequence of high words between them. 
From some cause, the combat did not take place, and the 
Christian prelate seized the arms and horses of the parties 
as his mulct. They appealed to the Parlement of Paris, 
which ordered the restoration of the confiscated articles, 
and fined the bishop for his disregard of the royal edicts 
prohibiting the single combat. 1 By this time, probably, the 
dictum of Beaumanoir had become generally acknowledged, 
that the church could not be concerned in cases which 
involved the wager of battle, or of death or mutilation. 3 

There was one jurisdiction which held itself more care- 
fully aloof from the prevailing influence of barbarism — that 
of the Admiralty Courts, which covered a large portion of 
practical mercantile law. This is a fact easily explicable, 
not only from the character of the parties and of the trans- 
actions for which those courts were erected, but from the 
direct descent of the maritime codes from the Roman law, 
less modified by transmission than any other portions of 
mediaeval jurisprudence. These codes, though compiled 
at a period when the wager of battle flourished in full lux- 
uriance, have no reference to it whatever, and the Assises 
de Jerusalem expressly allude to the Admiralty Courts 
as not admitting the judicial duel in proof, 3 while an Eng- 
lish document of 12 Edward III. attests the same prin- 
ciple.* When, however, the case was one implying an 
accusation of theft or deception, as in denjdng the receipt 

nous avons recogneut et recognissons e'on ne les doit faire aillors, maiques 
en la court de l'ostel nostre signour l'evesque de Metz. — Du Cange, s. v. Ar- 
ramiatio 

1 Les Olim, III. 679. 

2 Voirs est que tuit li cas oil il pot avoir gages de bataille ou peril de 
perdre vie ou mernbre, doivent estre justicie par le laie justice ; ne ne s'en 
doit sainte Eglise meller. — Coutumes du Beauvoisis, cap. xi. art. 30. 

3 En la cort de la mer na point de bataille por prueve ne por demande 
de celuy veage. — Assises de Jerusalem, cap. xliii. 

4 Pardessus, Us et Coutumes de la Mer. 



112 THE WAGER OF BATTLE. 

of cargo, the matter entered into the province of criminal 
law, and the battle trial might be legitimately ordered. 1 

The forms and ceremonies employed in the judicial duel 
may furnish an interesting subject of investigation for 
the admirers of chivalry, but they teach in their details 
little concerning the habits and modes of thought of the 
Middle Ages, and are merely interesting to the pure ar- 
chaeologist. Although minute directions have come down 
to us in the manuals compiled for the guidance of judges 
of the lists, to enumerate them in their varying fashions 
would therefore hardly be worth the space which would 
be required to accomplish the task with any fulness. Suf- 
fice it to say that the general principle on which the combat 
was conducted was the absolute assertion by each party 
of the justice of his cause, to which end a solemn oath on 
the Gospels, or on a relic of approved sanctity, was admin- 
istered to each before the conflict commenced. 2 Defeat 
was thus not merely the loss of the suit, but was also a 
conviction of perjury, to be punished as such ; and in 
criminal cases it was also a conviction of malicious prose- 
cution on the part of a worsted appellant. Accordingly, 
we find the vanquished party, whether plaintiff or defend- 
ant, subjected to penalties more or less severe, varying with 
the time and place. Thus, in 819, Louis-le-Debonnaire 
decreed that, in cases where testimony was evenly balanced, 
one of the witnesses from each side should be chosen to 
fight it out, the defeated champion suffering the usual pen- 
alty of perjury — the loss of a hand ; while the remaining 

1 Livres de Jostiee et de Plet, Liv. vn. Tit. iv. § 2. 

2 According to Bracton, the appellant in criminal cases appears always 
obliged to swear to his own personal knowledge, visit ac auditu, of the 
crime alleged. This, however, was not the case elsewhere. Among the 
glossators on the Lombard law, there were warm disputes as to the propriety, 
in certain eases, of forcing one of the contestants to commit perjury. The 
matter will be found treated at some length in Savigny's Geschichte d. 
Bom. Recht, B. iv. p. 159 sqq. 



PUNISHMENT FOR DEFEAT. 113 

witnesses on the losing side were allowed the privilege of 
redeeming their forfeited members at the regular legal 
rate. 1 William the Conqueror imposed a fine of forty sous 
on the losing side impartially f this was increased to sixty 
sous by the compilation known as the laws of Henry I. ; 3 
and the same fegulation is stated by Glanville, with the 
addition that the defeated person was forever disqualified 
as a witness or champion. 4 By the Lombard customs, 
early in the eleventh century, the appellant, if vanquished, 
had the privilege of redeeming his hand; the defendant, 
if defeated, lost his hand, and was of course subject in ad- 
dition to the penalties of the crime of which he was proved 
guilty. 5 About the same time, the Bearnese legislation 
embodies a similar principle in a milder form, a fine of 
sixty-six sous Morlaas being imposed impartially on the 

1 Capit. Ludov. Pii ann. 819, cap. x. A somewhat similar provision oc- 
curs in the L. Burgund. Tit. xlv. and Ixxx. 

2 L. Guillelmi Conquest, in. xii. (Thorpe I. 493) "Si quis eorum victus 
fuerit emendet regi XL. solidos." — A previous law, however, had assessed a 
Norman appellant sixty sous when defeated (Ibid. n. ii.). 

3 Qui helium vadiaverit, et per judicium defecerit, LX. sol. emendet. — 
L. Henrici I. cap. lix. § 15. 

4 Finito autem duello, poena sexaginta solidorum imminehit victo, nomine 
recreantis. Et praeterea legem terrse amittet. — Glanvil. de Leg. Angl. Lib. 
II. cap. iii. 

That defeat in the combat was regarded as much more damaging than the 
simple loss of a suit is shown by some provisions in the custom of Normandy, 
by which a vanquished combatant was classed with perjurers, false witnesses, 
and other infamous persons, as incapable thenceforth of giving testimony in 
court (Cod. Leg. Normann. P. I. cap. lxiv. — Ludewig Reliq. MSS. T. 
VII. p. 270), or of serving on a jury (Anc. Coutume de Normandie — 
Bourdot de Richebourg, T. IV. p. 29), "Ne doibvent estre receuz a la juree, 
ne ceulx qui sont reprins de parjure, ou de porter faulx tesmoing, ou vaincu 
en champ de bataille, ou ceulx qui sont infames." This clause, however, 
does not occur in the corresponding passage of the ancient Latin version 
above alluded to. (Ludewig, T. VII. p. 282.) 

5 Poena vero utrisque imminet. Appellatori vero, si victus fuerit, ut 
manum perdat aut redimat. Appellato ut bannum solvat, manum perdat, et 
homicidium secundum legem emendat. — Formul. Vetus in L. Longobard. 
(Georgisch, p 127G.) 

10* 



114 THE WAGER OP BATTLE. 

losing party. 1 In process of time, this system was aban- 
doned in some countries. The English law of the thir- 
teenth century, admitted the justice of- the lex talionis in. 
principle, but did not put it in practice, a vanquished 
appellant in capital cases being merely imprisoned as a 
calumniator, while the defendant, if defeated, was executed, 
and his property confiscated. 3 The same distinction is to 
be found in the contemporary custom of Normandy. 3 

The application of the lex talionis to the man who brought 
a false charge, thus adjudging to him the penalty which 
was incurred by the defendant if convicted, was widely 
current during the Middle Ages. This principle is to be 
found enunciated in the broadest and most decided manner 
in the ecclesiastical law, 4 and it was naturally brought into 
play in regulating the fate of those engaged in the wager 
of battle. Thus Guillaume-le-Breton states that when 
Philip Augustus, in 1203, wrested Normandy from the 
feeble grasp of John Lackland, one of the few changes 
which he ventured to introduce in the local laws of the 
duchy was to substitute this rule of confiscation, mutilation, 
or death, according to the degree of criminality involved 
in the accusation, for the comparatively light pecuniary 
mulct and loss of legal status previously incurred by a 
worsted appellant. 5 The same system is followed through- 

1 For d'Oloron, Art. 21. 

3 Si autem appellans vietus fuerit, gaolae committatur tanquam calumni- 
ator puniendus, sed nee vitam amittat nee membrum, licet secundum leges 
ad talionis teneretur (Bracton, Lib. in. Tract, ii. cap. 18 § 6). In another 
passage, Bracton gives a reason for this clemency — " Si autem vietus sit in 
campo . . . quamvis ad gaolam mittendus sit, tamen sit ei aliquando gratia 
de misericordia, quia pugnat pro pace." (Ibid. cap. 21 § 7.) 

3 Etab. de Normandie, Tit. " De prandre fame a. force" (Marnier). 

4 Qui calumniam illatam non probat, poenam debet incurrere quam si pro- 
basset reus utique sustineret. — Can. Qui calumniam Caus. v. q. vi. (Decreti 
P. II.) 

5 ... ad poenas exigat sequas, 

Vietus ut appellans sive appellatus, eadem 



PUNISHMENT FOR DEFEAT. 115 

out the legislation of St. Louis, whether the punishment 
be light or capital, of an equal responsibility on both 
parties. 1 It prevailed throughout the Frankish kingdoms 
of the East, where, in an appeal of murder, whichever party 
was defeated was hanged in his spurs f and it finally esta- 
blished itself in England, where, in the fourteenth century, 
we find it positively declared as an imperative regulation 
by Thomas, Duke of Gloucester, in an elaborate treatise on 
the rules of single combat printed by Spelman. 3 

In Germany, however, the custom was not uniform. In 
one text of the Swabian code, the principle is laid down 
that a defeated appellant escaped with a fine to the judge 
and to his adversary, while the defendant if vanquished was 
visited with the punishment due to his crime ; 4 while ano- 
ther text directs that whichever party be defeated should 
lose a hand, 5 or be executed, according to the gravity of 

Lege ligaretur mutilari aut perdere vitam. 
Moris enim extiterit apud illos hactenus, ut si 
Appellans victus in causa sanguinis esset, 
Sex solidos decies cum nummo solveret uno 
Et sic impunis, amissa lege, maneret: 
Quod si appellatum vinci contigeret, omni 
Re privaretur et turpi morte periret. 

Guillielmi Brito. Philippidos Lib. viii. 
It will be observed that the preexisting Norman custom here described is 
precisely that indicated above by Glanville. 

1 E. g. Etablissements Lib. i. cap. 27 and 91. — "Cil qui seroit vaincus 
seroitpendus" (cap. 82). In capital cases, when champions were employed, 
the principals were held in prison with the cord around them with which 
the defeated party was to be hanged. If one was a woman, for the cord 
was substituted the spade wherewith she was to be buried alive. (Beauma- 
noir, chap. lxiv. § 10.) These customs were not calculated to encourage 
duelling. 

2 Assises de Jerusalem, cap. 317. 

3 Recta fides et sequitas et jus armorum volunt ut appellans eandem incur- 
rat pcenam quam defendens, si is victus fuerit et subactus. — Formula Duelli, 
apud Spelman. Glossar. s. v. Campus. 

* Jur. Provin. Alamann. cap. ccclxxxvi. §§ 19, 20 (Ed. Schilter.). 
8 Quique siiccumbit ei manus nmputetur. — Ibid. cap. clxviii. § 20 (Ed. 
Senckenberg). 



116 THE WAGER OF BATTLE. 

the crime alleged. 1 An exceptional case, moreover, was 
provided for, in which both antagonists might suffer the 
penalty ; thus, when a convicted thief accused a receiver of 
stolen goods of having suggested the crime, the latter was 
bound to defend himself by the duel, and if defeated, both 
combatants were hanged with the strictest impartiality. 3 
In the Veronese code of 1228, a distinction was established 
between the prosecutor and the accused, as a defeated 
appellant was punishable at the pleasure of the magistrate. 3 
It was customary to require the parties to give security 
for their due appearance at the appointed time, various 
fines and punishments being inflicted on defaulters. By 
the old German law, the defendant under such circum- 
stances was held guilty of the crime charged upon him ; 
and both defendant and appellant were declared infamous. 
According to some MSS., indeed, all the possessions of a 
defaulter were forfeited, either to his heirs, or to his feudal 
superior. 4 Among the Bearnese, on the contrary, the 
forfeiture for a default was only sixteen sous Morlaas. 5 
The Scandinavians punished it popularly by erecting a 
"nithstong" — pertica execrationis — a post inscribed with 
defamatory runes, and so flagrant was this insult con- 
sidered, that finally it was prohibited by law under pain 
of exile. 6 The bail, of course, was liable for- all legal 
penalties incurred by a defaulter, and occasionally, indeed, 
would seem to be made to share the fate of the principal, 
who appeared and was defeated. Thus, in a miracle play 

1 Jur. Provin. Alamann. cap. clxxii. § 18 (Ed. Senckenberg). 
3 Ibid. cap. ccxix-. § 6 (Ed. Schilter.). 

3 Et si actor amiserat pugnam, ipsum meo arbitrio puniain — L. Municip. 
Veron. cap. 78. 

4 Jur. Provin. Alamann. cap. ccclxxxvi. § 31 (Ed. Schilter.). — Cap. clxxiii. 
§§ 7, 8. (Ed. Senckenb.). 

6 For de Morlaas, Ruhr, iv. art. 5. 

6 Schlegel Comment, ad Gragas § 31. — Gragas Sect. viii. cap. 105. A 
fanciful etymologist might trace to this custom the modern phrase of " post- 
ing a coward." 



CHOICE OF WEAPONS. 11T 

of the fourteenth century, a stranger knight at the court of 
Paris, compelled to fight in defence of the honor of the 
king's daughter, is unable to find security. The queen and 
princess offer themselves as hostages and are accepted, but 
the king warns them — 

Dame, par Dieu le roy celestre ! 
Bien vous recevray pour hostage ; 
Mais de taut vous fas-je bien sage, 
Se le dessus en peut avoir 
Ardre, je vous feray ardoir 
Et mettre en cendre. 1 

As regards the choice of weapons, much curious anecdote 
could be gathered from the pages of Brantome and others 
learned in punctilio, without throwing additional light upon 
mediaeval customs. It may be briefly observed, however, 
that when champions were employed on both sides, the law 
appears generally to have restricted them to the club and 
buckler, and to have prescribed perfect equality between 
the combatants. 3 An ordonnance of Philip Augustus, in 
1215, directs that the club shall not exceed three feet in 
length. 3 When the principals appeared personally, it would 
seem that in early times the appellant had the choice of wea- 
pons, which not only gave him an enormous advantage, but 
enabled him to indulge airy whims which his taste or fancy 
might suggest, as in the case of a Gascon knight in the 

1 Un Miracle de Notre-Dame d'Amis et d'Amille (Monmerque et Michel, 
Theat. Francais au Moyen-Age, p. 238). 

Another passage in the same play signalizes the equality of punishment 
for appellant and defendant in case of defeat : — 

— Mais quant il seront 
En champ, jamais n'en ysteront 
Sanz combatre, soiez-en fls, 
Tant que l'un en soit desconfis ; 
Et celui qui vaincn sera, 
Je vous promet, pendu sera; 
N'en doubte nulz. 

2 E. g. Constit. Sicular. Lib. n. Tit. xxxvii. § 1. 

3 Lauriere, Table des Ordonn. p. 10. 



118 THE WAGER OF BATTLE. 

thirteenth century, who stipulated that each combatant 
should be crowned with a wreath of roses. As every detail 
of equipment was thus subject to the caprice of the chal- 
lenger, those who were wealthy sometimes forced their 
poorer adversaries to lavish immense sums on horses and 
armor. 1 Where, however, the spirit of legislation became 
hostile to the wager of battle, this advantage was taken from 
the appellant. Frederic II. appears to have been the first 
to promulgate this rational idea, and, in decreeing that in 
future the choice of arms shall rest with the defendant, he 
stigmatizes the previous custom as utterly iniquitous and 
unreasonable. 2 In this, as in so many other matters, he 
was in advance of his age, and the general rule was that 
neither antagonist should have any advantage over the 
other — except the fearful inequality, to which allusion has 
already been made, when a roturier dared to challenge a 
gentleman. 3 According to Upton, in the fifteenth century, 
the judges were bound to see that the arms were equal, but 
he admits that on many points there was no settled or defi- 
nite rule. 4 In Russia, each combatant followed his own 
pleasure ; and a traveller in the sixteenth century relates 
that the Muscovites were in the habit of embarrassing them- 
selves with defensive armor to an extent which rendered 
them almost helpless, so that in combats with Poles, 
Lithuanians, and Germans they were habitually worsted, 
until judicial duels between natives and foreigners were at 
length prohibited on this account. 5 

Allusions have occurred above to a peculiarity of these 
combats — the employment of champions — which received 
an application sufficiently extended to deserve some special 

1 Revue Historique de Droit, 1861, p. 514. 

3 Constit. Sieular. Lib. n. Tit. xxxvii. § 4. — Consuetudinem pravam et a 
tramite rationis cujuslibet alienam. 

3 This, however, was not permitted by Frederic, (ubi sup.) 

4 De Militari Officio Lib. n. cap. viii. 5 Du Boys, op. cit. I. 611. 



EMPLOYMENT OP CHAMPIONS 119 

notice. It has been seen that those unable to wield the 
sword or club were not therefore exempted from the 
duel, and even the scantiest measure of justice would 
require that they should have the right to delegate their 
vindication to some more potential vehicle of the Divine 
decision. This would seem originally to have been the 
office of some member of the family, as in the cognate 
procedure of sacramental purgation. Among the Alamanni, 
for instance, a woman when accused could be defended by 
a kinsman " cum tract a spata ; m the same rule is prescribed 
by the Lombard law, 3 and by that of the Angli and Werini ; 3 
while the far pervading principle of family unity renders 
the presumption fair that it prevailed throughout the other 
races in whose codes it is not specifically indicated. Re- 
stricted to cases of disability, the use of champions was a 
necessity to the battle ordeal, but at a very early period 
the practice received a remarkable extension, which was 
directly in conflict with the original principles of the judi- 
cial duel, in permitting able-bodied antagonists to put for- 
ward substitutes who fought the battle for their principals. 
With regard to this there appears to have been a consider- 
able diversity of practice among the races of primitive 
barbarians. The laws of the Franks, of the Alamanni, and 
of the Saxons make no allusion to such a privilege, and 
apparently expect the principal to defend his rights himself, 
and yet an instance occurs in 590, where, in a duel fought 
by order of Gontran, the defendant was allowed to intrust 
his cause to his nephew, though as he was accused of killing 
a stag in the king's forest, physical infirmity could hardly 
have been pleaded.* From some expressions made use of 

1 L. Alamann. Add. cap. xxi. 

2 L. Longobard. Lib. i. Tit. iii. § 6, and Lib. n. Tit. Iv. § 12. 

3 L. Anglior. et Werinor. Tit. xiv. 

4 Greg. Turon. Hist. Lib. x. cap. x. In this case, both combatants per- 
ished, when the accused was promptly put to death, showing that such a 
result was regarded as proving the truth of the offence alleged. 



120 THE WAGER OP BATTLE. 

by St. Agobard, in his onslaught on the ordeal of battle, 
we may fairly presume that under Louis-le-D^bonnaire 
the employment of champions, in the Burgundian law, 
was, if not forbidden, at least unusual as respects the de- 
fendant, even in cases where age or debility unfitted him 
for the combat, while it was allowed to the appellant. 1 
On the other hand, the Baioarian law, which favored the 
duel more than any of the other cognate codes, alludes to 
the employment of champions in every reference to it, and 
with the Lombards the judicial combat and the champion 
seem to have been likewise convertible terms. 3 There is in 
this something so repugnant to the fierce and self-relying 
spirit in which the wager of battle found its origin, and the 
use of a professional gladiator is so inconsistent with the 
pious reference to the judgment of God, which formed the 
only excuse for the whole system, that some external reason 
is required to account for its introduction. This reason is 
probably to be found in the liberty allowed of challenging 
witnesses, to which allusion has already been made. The pre- 
valence of this throughout Western Europe readily enabled 
parties, unwilling themselves to encounter the risks of a 
mortal struggle, to put forward some truculent bravo who 
swore point-blank, and whose evidence would require him to 
be forced out of court at the sword's point. That this, indeed, 
was frequently done is proved at a subsequent period by a 
remark of Bracton, who states that a witness suspected of 
being a hired gladiator was not allowed to proceed to the 
combat, but was tried for the attempt by a jury, and if con- 
victed was punished by the loss of a foot and hand. 3 

1 Horum enim causa accidit ut non solum valentes viribus, sed etiam in- 
firmi et senes lacessantur ad certamen et pugnam. etiam pro vilissimis rebus. 
(Lib. adv. Legem Gundobadi cap. vii.) Mitte unum de tuis, qui congre- 
diatur mecum singulari certamine, ut probat me reum tibi esse, si occiderit. 
(Lib. contra Judicium Dei cap. i.) 

2 Liceat ei per campionem, id est per pugnam, crimen ipsum de super se 
si potuerit ejicere. — L. Longobard. Lib. I. Tit. i. § 8. 

3 Intrat quandoque in defensionem et warrantum aliquis malitiose et per 



WITNESSES AS CHAMPIONS. 121 

Although the custom of hiring champions existed from 
a very early period, since the Frisian laws give the fullest 
license for employing and paying them, 1 still their identity 
with witnesses cannot be readily proved from the simple 
records of those primitive times. It becomes very evident, 
however, in the more detailed regulations of the twelfth 
and thirteenth centuries. In England, for instance, until 
the first statute of Westminster, issued by Edward I., in 
1275, the hired champion of the defendant in a suit con- 
cerning real estate was obliged to assume the position of 
a witness, by swearing that he had been personally present 
and had seen seizin given of the land, or that his father 
when dying had enjoined him by his filial duty to maintain 
the defendant's title as though he had been present. 3 This 
curious legal fiction was common also to the Norman juris- 
prudence of the period, where in such cases the champion 
of the plaintiff was obliged to swear that he had heard and 
seen the matters alleged in support of the claim, while the 
opposing champion swore that they were false. 3 In a simi- 
lar spirit, an earlier code of Normandy prescribes that 
champions shall be taken to see the lands and buildings in 
dispute, before receiving the oath of battle, in the same 
manner as a jury of view. 4 A more distant indication of 
the same origin is observable in the Neapolitan regulation 
which directed that the champion should swear on the field 
of battle as to his belief in the justice of the quarrel which 
he was about to defend. 5 

fraudem et pro mercede, sicut campio et conductitius, quod quidem si fuerit 
coram justitiariis detectum, non procedatur ad duellum, sed per patriam in- 
quiratur Veritas si mercedem acceperit vel non ; et si constiterit quod sic, 
pedem araittat et pugnum. — Lib. hi. Tract, ii. cap. 32 § 7. 

1 Licet unicuique pro se campionem mercede conducere, si eum invenire 
potuerit. — L. Frision. Tit. xiv. cap. iv. 

2 Glanvil. de Leg. Angl. Lib. u. cap. iii. 

3 Cod. Leg. Norman. P. II. cap. lxiv. (Ludewig Reliq. MSS. VII. 416.) 

4 Etab. de Normandie, p. 21 (Marnier). 

5 Constit. Sicular. Lib. ii. Tit. xxxvii. § 2. 

11 



122 THE WAGER OF BATTLE. 

Looking on the profession of a champion in this light, 
as that of a false witness, we can understand the heavy 
penalties to which he was subjected in case of defeat, a 
severity which would otherwise appear to be a purposeless 
expression of the savage barbarity of the times. Thus in 
the Norman coutumier above referred to, in civil suits as 
to disputed landed possessions, the champion swearing to 
the truth of his principal's claim was, if defeated, visited 
with a heavy fine and was declared infamous, being thence- 
forth incapable of appearing in court either as plaintiff or 
as witness, while the penalty of the principal was merely 
the loss of th*e property in dispute. 1 In criminal cases, 
from a very early period, while the principal perhaps 
escaped with fine or imprisonment, the hired ruffian was 
hanged, or at best lost a hand or foot, the immemorial 
punishment for perjury. 2 In later times, when the origin 
of the champion's office had been lost sight of, and he was 
everywhere recognized as simply a bravo who sold his skill 
and courage to the highest bidder, a more practical reason 
was found for maintaining this severity — the more neces- 
sary, because the principal was bound by law to pay his 
champion, even when defeated, the full sum agreed upon 
as the price of his services in both swearing and fighting. 3 
Beaumanoir thus defends it on the ground of the liability 
of champions to be bought over by the adverse party, and 
he therefore commends the gentle stimulus of prospective 
mutilation as necessary to prevent them from betraying 

1 Cod. Leg. Norman. P. n. cap. Ixiv. § 18 (Ludewig, VII. 417). 

3 Et carapioni qui victus fuerit, propter perjuriam quod ante pugnam com- 
misit, dextra manus amputetur. — (Capit. Ludov. Pii ann. 819 § x.) — Victus 
vero in duello centum solidos et obolum reddere tenebitur. Pugil vero con- 
ductitius, si victus fuerit, pugno vel pede privabitur. — (Charta ann. 1203 
— Du Cange). — Also Beaumanoir, Cout. du Beauv., cap. lxvii. § 10 (Du Cange 
seems to me to have misinterpreted this passage). — See also Monteil's ad- 
mirable " Histoire des Frangais des Divers Etats," XVe Siecle, Hist. xiii. 

3 Cod. Leg. Norman. P. n. cap. Ixiv. § 19 (Ludewig, VII. 417). 



PROFESSIONAL CHAMPIONS. 123 

their employers. 1 In the same spirit, the Emperor Frederic 
II. prohibited champions from bargaining with each other 
not to use teeth and hands. He commanded them to inflict 
all the injury possible on their adversaries, and decreed 
that they should, in case of defeat, share the punishment 
incurred by the principal, if the judge of the combat should 
consider that through cowardice or treachery they had not 
conducted the duel with proper energy and perseverance. 8 

With such risks to be encountered, it is no wonder that 
the trade of the champion offered few attractions to honest 
men, who could keep body and soul together in any other 
way. In primitive times, the solidarity of the family no 
doubt caused the champion in most cases to be drawn from 
among the kindred ; at a later period he might generally 
be procured from among the freedmen or clients of the 
principal, and an expression in the Lombard law justifies 
the assumption that this was habitual, among that race at 
least. 3 In the palmy days of chivalry, it was perhaps not 
uncommon for the generous knight to throw himself boldly 
into the lists in defence of persecuted and friendless inno- 
cence, as he was bound to do by the tenor of his oath of 
knighthood. 4 A vast class of pleaders however would neces- 
sarily be destitute of these resources to avoid the personal 
appearance in the arena for which they might be unfitted 
or disinclined, and thus there gradually arose the regular 

1 Et li campions vaineus a le poing cope ; car se n'estait por le mehaing 
qu'il emporte, aucuns, par barat, se porroit faindre par loier et se clameroit 
vaineus, par quoi ses mestres emporteroit le damace et le vilonie, et cil em- 
porteroit l'argent ; et por ce est bons li jugemens du mehaing. — (Cout. du 
Beauv. cap. Ixi. § 14.) — A charter of 1372 shows that the mutilation of de- 
feated champions was practised even at that late date. — (Isambert, V. 387.) 

3 Constit. Sicular. Lib. n. Tit. xxxvii. § 3. 

3 Et post illam inquisitionem, tradat manum ipse camphio in manu pa- 
rentis aut conliberti sui ante judicem. — L. Longobard. Lib. n. Tit. lv. § 11. 

4 Thus the oath administered by the papal legate to William of Holland, 
on his receiving knighthood previous to his coronation as King of the Ro- 
mans in 1247, contains the clause "pro liberatione cujuslibet innocentis 
duellum inire."— Goldast. Constit. Imp. T. III. p. 400. 



124 THE WAGER OP BATTLE. 

profession of the paid gladiator. Reckless desperadoes, 
skilled at quarter-staff, or those whose familiarity with 
sword and dagger, gained by a life spent in ceaseless brawls, 
gave them confidence in their own ability, might undertake 
it as an occupation which exposed them to little risk be- 
yond what they habitually incurred, and of such was the 
profession generally composed. This evil must have made 
itself apparent early, for we find Charlemagne endeavoring 
to oppose it by decreeing that no robber should be allowed 
to appear in the lists as a champion j 1 and the order needed 
to be frequently repeated. 

It is therefore easy to understand, when the Roman law 
commenced to exercise its powerful influence in moulding 
the feudal customs into a regular body of procedure, and 
admiring jurists lost no opportunity of making use of the 
newly discovered treasures of legal lore, whether applicable 
or not, that the contempt and the civil disabilities lavished 
by the Imperial jurisprudence on the gladiator of antiquity 
should be transferred to the mediaeval champion : although 
the latter by the theory of the law stood forth to defend 
the innocent, while the former ignobly exposed his life for 
the gratification of an imbruted populace. 9 By the thir- 
teenth century, therefore, the occupation of champion had 
become infamous. Its professors were classed with the 
vilest criminals, and with the unhappy females who exposed 
their charms for sale, as the champion did his skill and 

1 Ut nemo furem camphium de mancipiis aut de qualibet causa recipere 
praesumat, sicut ssepius dominus imperator commendavit. — Capit. Carol. 
Mag. ex L. Longobard. cap. xxxv. (Baluze.) 

3 This curious legacy of shame is clearly traceable in Pierre de Fontaines. 
To be a gladiator or an actorwas, by the Roman law, a competent cause for 
disinheritance (Novel, cxv. cap. iii. § 10), more fully set forth in Cod. 
Lib. in. Tit. xxvii. I. 11, de arenariis. This latter is translated bodily by 
de Fontaines (Conseil, chap, xxxiii. Tit. 32), the "arenarius" of the Roman 
becoming the "champions" of the Frenchman. So, chap. xv. Tit. 87 of the 
Conseil is a translation of Dig. Lib. iv. Tit. ii. 1. 23 § 2, in which the " ath- 
leta" of the original is transformed into a "chanpion." 



DEGRADATION OF CHAMPIONS. 125 

courage. 1 They were held incapable of appearing as wit- 
nesses, and the extraordinary anomaly was exhibited of 
seeking to learn the truth in affairs of the highest moment 
by a solemn appeal to God, through the instrumentality of 
those who were already considered as convicts of the worst 
kind, or who, by the very act, were branded with infamy if 
successful in justifying innocence, and if defeated were 
mutilated or hanged. 3 By the codes in force throughout 
Germany in the thirteenth and fourteenth centuries, they 
were not only deprived of all legal privileges, such as suc- 
ceeding to property, bearing witness, &c, but even their 
children were visited with the same disabilities. 3 The 
utter contempt in which they were held was moreover 
quaintly symbolized in the same code by the provisions of 
a tariff of damages to be assessed for blows and other per- 
sonal injuries. A graduated list of fines is given for such 
insults offered to nobles, merchants, peasants, &c, in com- 
pensation of their wounded honor ; below the serf come 
the mountebank and juggler, who could only cuff the assail- 
ant's shadow projected on a wall ; and last of all are rated 
the champion and his children, whose only redress was a 
glance of sunshine cast upon them by the offender from 
a polished shield. Deemed by law incapable of receiving 
an insult, the satisfaction awarded was as illusory as the 

1 Percutiat si quis hominem infamem, hoc est lusorem vel pugilem, aut 
mulierem publicam, &c. — Wichbild Magdeburg. Art. 129 (Du Cange). U Plu- 
sieurs larrons, ravisseurs de femmes, violleurs d'eglises, batteurs a loyer," 
etc. — Ordonn. de Charles VII. arm. 1447, also Anciennes Coutumes de Bre- 
tagne. (Monteil, ubi sup.) 

■ Johen de Beaumont dit que chanpions loiez, prove de tel chose, ne puet 
home apelier a, gage de bataille an nul quas, si n'est por chanpion loiez por sa 
deffanse ; car la poine de sa mauvaise vie le doit bien en ce punir. — Livres 
de Jostice et de Plet. Liv. xix. Tit. ii. § 4. 

3 Campiones et eorum liberi (ita nati) et omnes qui illegitime nati sunt, 
et omnes qui furti aut pleni latrocinii nomine satisfecere, aut fustigationem 
sustinuere, hi omnes juris beneficiis carent. — Jur. Provin. Alamann. cap. 
xxxvi. § 2. (Ed. Schilter.) 

11* 



126 THE WAGER OF BATTLE. 

honor to be repaired. 1 That this poetical justice was long 
in vogue is proved by the commentary upon it in the Rich- 
stich Landrecht, of which the date is shown to be not 
earlier than the close of the fourteenth century by an allu- 
sion in the same chapter to accidental deaths arising from 
the use of firearms. 2 

The Italians, however, took a more sensible and practical 
view of the matter. Accepting as a necessity the existence 
of champions as a class, they were disposed rather to ele- 
vate than degrade the profession. In the Yeronese code 
of 1228, they appear as an established institution, consist- 
ing of individuals selected and appointed by the magis- 
trates, who did not allow them to receive more than one 
hundred sous for the performance of their office. 3 

It is evident that the evils attendant upon the employ- 
ment of champions were generally recognized, and it is not 
singular that efforts were occasionally made to abrogate or 
limit the practice. Otho II., whose laws did so much to 
give respectability to the duel, decreed that champions 
should be permitted only to counts, ecclesiastics, women, 
boys, old men, and cripples. 4 That this rule was strictly 
enforced in some places we may infer from the pleadings 
of a case occurring in 1010 before the Bishop of Aretino, 
concerning a disputed property, wherein a crippled right 
hand is alleged as the reason for allowing a champion to 

1 Campionibus et eorum liberis emendae loco datur fulgur ex clypeo nitido, 
qui soli obvertitur, ortum ; hoc is qui eis satisfaction em debet loco emenda? 
prsestare tenetur. — (Ibid. cap. cccv. § 15. — Jur. Provin. Saxon. Lib. in. art. 
xlv.) In the French version of the Speculum Suevicum, these emblematic 
measures of damage are followed by the remark " cestes emandes furent 
estrablies an la vieillie loy per les roys," (P. n. c. lxxxvi.) which would 
appear to show that they were disused in the territories for which the trans- 
lation was made. 

2 Richstich Landrecht, Lib. n. cap. xxv. This gives additional point to 
the insult by prescribing the use of a duelling shield for the reflection of the 
sunbeam. 

3 L. Municip. Veron. cap. 125, 126. 

4 L. Longobard. Lib. ii. Tit. lv. §§ 38, 40. 



RESTRICTIONS ON USE OP CHAMPIONS. 121 



one of the parties. 1 In other parts of Italy, however, the 
regulation must have been speedily disregarded, for about 
the same time Henry II. found it necessary to promulgate 
a law forbidding the employment of substitutes to able- 
bodied defendants in cases of parricide or of aggravated 
murder f and when, two hundred years later, Frederic II. 
almost abolished the judicial combat in his Neapolitan 
dominions, we may fairly presume from one of his remarks 
that champions were almost universally employed. 3 In- 
deed, he made provision for supplying them at the public 
expense to widows, orphans, and paupers who might be 
unable to secure for themselves such assistance. 4 In Ger- 
many, early in the eleventh century, it would seem that 
champions were a matter of course, from the expressions 
made use of in describing the execution of a number of 
robbers convicted in this manner at Merseburg in 101 T. 5 
At a later period, it seems probable, from a comparison of 
two chapters of the Swabian laws, that efforts were made 
to prevent the hiring of professional gladiators, 6 but that 
they were attended with little success may be inferred from 
the disabilities which, as we have already seen, were so 
copiously showered on the class by the same laws. 

The English law manifests considerable variation at dif- 
ferent periods with respect to this point. In 1150, Henry 
II. strictly prohibited the wager of battle with hired cham- 
pions in his Norman territories, 7 and we learn from Grlanville 

1 Muratori, Antiq. Ital. Dissert. 39. 

2 L. Longobard. Lib. i. Tit. ix. § 37 ; Tit. x. § 4. 

3 -Vix enim autnunquam duo pugiles inveniri poterunt sic sequales, etc. — 
Constit. Sicular. Lib. n. Tit. xxxiii. 

4 Ibid. Lib. i. Tit. xxxiii. 

5 Ibi tunc multi latrones a gladiatoribus singulari certamine devicti, sus- 
pendio perierunt. — Dithmari. Chron. Lib. vn. 

6 Jur. Provin. Alamann. cap. xxxvi. § 2; cap. Ix. § 1. 

7 Nullus eorum duellum faciat contra aliquem qui testificatus sit pugil 
conductitius per sacramentum decern legalium civiuni. — Concil. Eccles. Roto- 
mag. p. 128 (Du Cange). 



128 THE WAGER OF BATTLE. 

that a champion suspected of serving for money might be 
objected to by the opposite party, whence arose a secondary 
combat to determine his fitness for the primary one. 1 It is 
evident from this that mercenary champions were not re- 
cognized as legal in England, a principle likewise deducible 
from an expression of Bracton's in the succeeding century. 2 
Yet eventually, in civil cases, both parties were compelled by 
law to employ champions, which presupposes, as a matter 
of course, that, in a great majority of instances, the substi- 
tutes must have been hired. 3 In criminal cases, however, 
the rule was reversed, and when the appellant, from sex or 
other disability, or the defendant from age, was unable to 
undergo the combat personally, it was forbidden, and the 
case was decided by a jury.* By the Scottish law of the 
twelfth century, it is evident that champions were not 
allowed in any case, since those disabled by age or wounds 
were forced to undergo the ordeal in order to escape the 
duel. 5 This strictness became relaxed in time, though the 
practice seems never to have received much encouragement. 
By a law of David II., about the year 1350, it appears that 
a noble had the privilege of putting forward a substitute ; 
but if a peasant challenged a noble, he was obliged to appear 
personally, unless his lord undertook the quarrel for him 
and presented the champion as from himself. 6 

1 De Leg. Angliae Lib. n. cap. iii. 

3 Ita posset quilibet in tali facto alium appellare per carnpionem conduc- 
tivum, quod non est sustinendum. — Bracton. Lib. m. Tract, ii. cap. 18 § 4. 

3 Lord Eldon, in his speech advocating the abolition of trial by battle in 
1819, stated, "In these the parties were not suffered to fight in propria 
•persona — they were compelled to confide their interests to champions, on the 
principle that if one of the parties were slain, the suit would abate." — 
Campbell's Lives of the Chancellors, VII. 279. 

4 Bracton, Lib. in. Tract, ii. cap. 21, §§ 11, 12. — Ibid. cap. 24. 
* Regiam Majestatem Lib. iv. cap. iii. 

6 Statut. David II. cap. xxviii. By the burgher laws of Scotland, a man 
who was incapacitated by reason of age from appearing in the field, was 
allowed to defend himself with twelve conjurators. — L. Burgor. cap. xxiv. 

hh i, 2. 



RESTRICTIONS ON USE OF CHAMPIONS. 129 

The tendency exhibited by the English law in distin- 
guishing between civil and criminal cases is manifested 
elsewhere. Thus in France and the Frankish kingdoms 
of the East, there were limitations placed on the employ- 
ment of champions in prosecutions for crime, 1 while in 
civil actions there appear to have been, at least in France, 
no restrictions whatever. 3 The hiring of champions, more- 
over, was legally recognized as a necessity attendant npon 
the privilege. 3 High rank, or a marked difference between 
the station of parties to an action, was also admitted as 
justifying the superior in putting forward a champion in 
his place. 4 Local variations, however, are observable in 
the customs regulating these matters. Thus the municipal 
laws of Rheims, in the fourteenth century, not only restrict 
the admission of champions in criminal matters to cases 
in which age or physical disability may incapacitate the 
principals from personally taking part in the combat, but 
also require the accused to swear that the impediment has 
supervened since the commission of the alleged offence, 
thus in fact assuming his guilt ; and even this was of no 

1 Assises de Jerusalem, cap. 145, 146. — Beaumanoir, cap. Ixi. § 6 ; cap. 
Ixiii. § 4. 

2 Beaumanoir cap. Ixi. § 14. — The distinction between civil and criminal 
practice is very clearly drawn by Pierre de Fontaines, who states that in 
appeal of judgment the appellant in criminal cases is bound to show satis- 
factory cause for employing a champion, while in civil affairs the right to do 
so requires no argument. — ''Quant aucuns fause jugement, par lui et par 
son avoee, come horn qui a essoine, mostrer doit son essoine, se Pen li re- 
quiert, puisque li fausemenz est faiz en point qu'il ipeust vie perdre ; mes se 
vie n'i cort, il n'est mie tenuz de mostrer essoine ; car toz sanz essoine peut- 
il metre avoe la oil vie ne gist ou menbres." — Conseil, chap. xxn. Tit. xiii. 

3 II est usage que se aucun demende la cort de bataille qui est juege par 
champions loees, il la tendra le jor maimes, et si ele est par le cors des que- 
releors il metra jor avenant a la tenir autre que celui. — Coutumes d'Anjou, 
XHI.e Siecle, § 74. 

4 Kar haute persone doit bien metre por lui, a deffendre soi, home, honeste 
persone, se Pan Papele, ou s'il apele autre. — Livres de Jostice et de Plet, Liv. 
ii. Tit. xviii. 



130 THE WAGER OF BATTLE. 

avail if the prosecutor had included in his appeal of battle 
an assertion that such disability had existed at the time 
specified. 1 Witnesses obliged to support their testimony by 
the duel were not only subject to the same restrictions, but 
in substituting a hired gladiator were obliged to swear that 
they had vainly sought among their friends for some one 
to voluntarily assume the office. 5 * The whole tenor of these 
provisions, indeed, manifests a decided intention to surround 
the employment of champions with every practicable impe- 
diment. In Beam, again, the appellant in cases of treason 
had a right to decide whether the defendant should be 
allowed to put forward a substitute, and from the expres- 
sions in the text it may be inferred that in the selection of 
champions there was an endeavor to secure equality of 
age, size, and strength. 3 This equalization of chances was 
thoroughly carried out in the Veronese code of 1228, where, 
as has been seen, the champions were a recognized bodjr, 
regulated and controlled by the state. The magistrate 
was bound to choose gladiators of equal prowess, and the 
choice between them was then given to the defendant : 
an arrangement which rendered the mutilation inflicted on 
the vanquished combatant only justifiable on the score of 
suspected treachery. 4 By the Spanish law of the thirteenth 
century, the employment of champions was so restricted as 
to show an evident desire on the part of the legislator to 

1 Nee potest alter eorum campionem ponere, nisi propter statum, vel cor- 
poris infirmitatem ; nee auditur reus de morbo tempore quo dicitur crimen 
commisisse ; quod si velit jurare impedimentum post illud tempus super eum 
venisse, audietur, nisi actor in vadio belli addiderit, scilicet quod cum tali 
morbo crimen commiserit — Lib. Pract. de Consuet. Remens. § 40. (Archives 
Legisl. de Reims, Pt. I. p. 40.) 

3 Etiam antequam campionem possit quis ponere, jurare debet quod bona 
fide amicos suos requisivit quod pro ipso bellum facerent. — Ibid. § 14, p. 37. 

3 For de Morlaas, Rubr. liii. art. 188. 

4 Omnes camphiones . . . per me vel per judices communis Veronae, sive 
consules, bona fide coeequabo : facta cossquatione, defendenti electionem 
dabo. — L. Municip. Veronens. cap. 126. 



CHAMPIONS FOR COMMUNITIES. 131 

discourage it as far as possible. The defendant had the 
right to send a substitute into the field, but the appellant 
could do so only by consent of his adversary. The cham- 
pion was required to be of birth equal to his principal, 
which rendered the hiring Of champions almost impossible, 
and not superior to him in force and vigor. Women and 
minors appeared by their next of kin, and ecclesiastics by 
their advocates. 1 In Russia, until the sixteenth century, 
champions were never employed, contestants being always 
obliged to appear in person. In 1550, the code known as 
the Soudebtnick at length permitted the employment of 
champions in certain cases. 3 

There were two classes of pleaders, however, with whom 
the hiring of champions was a necessity, and who could 
not be bound by the limitations imposed on ordinary liti- 
gants. While the sexagenary, the infant, and the crippled 
might possibly find a representative among their kindred, 
and while the woman might appear by her husband or next 
of kin, the ecclesiastical foundations and chartered towns 
had no such resource. Their .frequent occasion for this 
species of service, therefore, led to the employment of regu- 
larly appointed champions, who fought their battles for an 
annual stipend, or for some other advantages bestowed in 
payment. Du Cange, for instance, gives the text of an agree- 
ment by which one Geoffry Blondel, in 1256, bound himself 
to the town of Beauvais as its champion for a yearly salary 
of twenty sous Parisis, with extra gratifications of ten litres 
Tournois every time that he appeared in arms to defend its 
cause, fifty livres if blows were exchanged, and a hundred 
livres if the combat were carried to a triumphant issue. It 
is a little singular that Beaumanoir, in digesting the customs 
of Beauvais but a few years later, speaks of this practice as 
an ancient and obsolete one, which he had only heard of 

1 Las Siete Partidas, Pt. vn. Tit. iv. 1. 3. 

2 Du Boys, Droit Criminal des Peuples Modernes, I. 611-13. 



132 THE WAGER OF BATTLE. 

through tradition. 1 That it continued to be in vogue until 
long after, is shown by Monteil, who alludes to several 
documents of the kind, bearing date as late as the fifteenth 
century. 3 

The champions of the church occupied a higher position, 
and were bound to defend the interests of their clients in 
the field as well as in the court and in the lists ; they also 
led the armed retainers of the church when summoned by 
the suzerain to national war. The office was honorable 
and lucrative, and was eagerly sought by gentlemen of 
station, who turned to account the opportunities of ag- 
grandizement which it afforded ; and many a noble family 
traced its prosperity to the increase of ancestral property 
thus obtained, directly or indirectly, by espousing the 
cause of fat abbeys and wealthy bishoprics. 3 The influence 
of feudalism early made itself felt, and the office of Vidame 
or Avoue became generally hereditary. In many instances, 
it was a consideration obtained for donations bestowed 
upon churches, so that in some countries, and particularly 

1 Une malvese coustume souloit courre anciemment, si comme nos avons 
entendu des seigneurs de lois. — Cout. du Beauvoisis, cap. xxxviii. § 15. 

3 Hist, des Francais, XV e Siecle, Hist. xiii. — The tariff of rewards paid to 
Blondel, and Beauraanoir's argument in favor of mutilating a defeated 
champion, offer a strong practical commentary upon the fundamental princi- 
ple on which the whole system of appeals to the judgment of God was hased 
— that success was an evidence of right. 

3 Thus, in the ninth century, the abbot of Figeac, near Cahors, bestowed 
on a neighboring lord sixty churches and five hundred mansi, on condition 
of his fighting the battles of the abbey, "cum necessitas posceret, solo 
jussu, absque lucro alio temporali, bella abbatis et suorum praeliaretur." — 
Hist. Monast. Figeacens. — (Baluz. et Mansi IV. p. 1.) When feudalism 
fixed these chieftains firmly in possession, they rendered themselves inde- 
pendent of their benefactors. This process is graphically described by St. 
Abbo of Fleury, about the year 996 — " Defensores ecclesiarum qui dicuntur 
hodie, contra auctoritatem legum et canonum sibi defendunt quod fuerat 
juris ecclesiarum, sicque violentiam clericis et monachis ingerendo, res ec- 
clesiarum seu monasteriorum usufructuario diripiunt, colonosin paupertatem 
redigunt, possessiones ecclesiarum non augent sed minuunt, et quorum 
defensores esse debuerant, eos vastant. " — Collect. Canonum, can. ii. 



OPPOSITION OF THE CHURCH. 133 

in England, the title of advocatus became gradually recog- 
nized as synonymous with patron. Thus, one of the worst 
abuses of the Anglican Church is derived from this source, 
and the forgotten wrongs of the Middle Ages are perpetu- 
ated, etjonologically at least, in the advowson which ren- 
ders the cure of souls too often a matter of bargain and 
sale. 

The elasticity with which the duel lent itself to the ad- 
vantage of the turbulent and unscrupulous is well illus- 
trated in a document containing the proceedings of an 
assembly of local magnates in 888, to decide a contention 
concerning the patronage of the Church of Lessingon. 
After the testimony on one side had been given, the oppo- 
site party commenced in reply, when the leaders of the 
assembly, seizing their swords, vowed that they would 
affirm the truth of the first pleader's evidence with their 
blood before King Arnoul and his court — and the case was 
decided. 1 The strong and the bold are apt to be the ruling 
classes in all times, and were emphatically so in those rude 
ages of scarcely curbed violence when the jurisprudence of 
the European commonwealths was forming itself, and to 
the immense advantages which the wager of battle afforded 
to those classes may be attributed the wide-spread influence 
which it enjoyed. 

Its only consistent opponents were found among eccle- 
siastics. When King Gundobald gave it form and shape in 
digesting the Burgundian laws, Avitus, Bishop of Vienne, 
remonstrated loudly against the practice as unjust and 
unchristian. A new controversy arose on the occasion 
of the duel between the Counts Bera and Sanila, to which 
reference has been made as an important event in the 
reign of Louis-le-Debonnaire. St. Agobarcl, Archbishop 

1 Optimates ejusdem concilii, apprehensis spatis suis, devotaverunt se hsec 
ita affirniaturos esse coram regibus et cunctis principibus usque ad sanguinis 
effusionem. — Goldast. Antiq. Alamann. chart, lxxxv. 

12 



134 THE WAGER OF BATTLE. 

of Lyons, took advantage of the occasion to address to 
the Emperor a treatise, in which he strongly deprecated 
the appeal to arms, as well as the employment of ordeals, 
in settling judicial questions, and he subsequently wrote 
another, consisting principally of scriptural texts with a 
running commentary, proving their incompatibility with 
so unchristian a practice. 1 Some thirty-five years after- 
wards, the Council of Yalence, in 855, denounced the battle 
trial in the most decided terms, praying the Emperor Lo- 
thair to abolish it throughout his dominions, and adopting 
a canon which excommunicated the victor in such contests, 
and refused the rites of Christian sepulture to the victim. 2 
Pope Nicholas I. 3 and other pontiffs protested against it, and 
exerted themselves energetically, to procure its abandon- 
ment. All this was totally without effect. If Charlemagne, 
in dividing his vast empire, forbade the employment of the 
wager of battle in settling the territorial questions which 
might arise between his heirs, 4 the prohibition merely shows 
that it was habitually used in affairs of the highest mo- 
ment, and the constant reference to it in his laws proves 
that it was in no way repugnant to his general sense of 
justice and propriety. 

The next century affords ample evidence of the growing 
favor in which the judicial combat was held. About the 
year 930, Hugh, King of Provence and Italy, becoming 
jealous of his uterine brother, Lambert, Duke of Tuscany, 
asserted him to be a supposititious child, and ordered him 

1 "Liber adversus Legem Gundobadi"and "Liber contra Judicium Dei." — 
(Agobardi Opera, ed. Baluzii, I. 107, 301.) Both these works display marked 
ability and a spirit of enlightened piety, mingled with frequent absurdities, 
which show that Agobard could not, in all things, rise superior to the preju- 
dices of his age. One of his favorite arguments is that the battle ordeal 
was approved by the Arian heretic Gundobald, whom he stigmatizes as 
" quidam superbus ac stultus haereticus Gundobadus Burgundionum rex." 

2 Concil. Valentin, ann. 855 can. 12. 

3 Can. Monomachiam Caus. n. q. v. 

4 Nee unquam pro tali caussa cujuslibet generis pugna vel campus ad 
examinationem judicetur. — Carol. Mag. Chart. Divisionis ann. 806 cap. xiv. 



OTHO THE GREAT. 135 

in future to claim no relationship between them. Lambert, 
being "vir . . . bellicosus et ad quodlibet facinus audax," 
contemptuously denied the aspersion on his birth, and 
offered to clear all doubts on the subject by the wager 
of battle. Hugh accordingly selected a warrior named 
Teudinus as his champion; Lambert was victor in the 
ensuing combat, and was universally received as the un- 
doubted son of his mother. His triumph, however, was 
illegally brought to a sudden close, for Hugh soon after 
succeeded in making him prisoner and deprived him of eye- 
sight. 1 Still, some enlightened ecclesiastics continued to 
denounce the practice, represented by Atto, Bishop of Ver- 
celli, who declared it to be totally inapplicable to church- 
men and not to be approved for laymen on account of the 
uncertainty of its results ; 3 but representations of this kind 
were useless. About the middle of the century, Otho the 
Great appears, throwing the enormous weight of his influ- 
ence in its favor. As a magnanimous and warlike prince, 
the wager of battle appears to have possessed peculiar attrac- 
tions for his chivalrous instincts, and he extended its appli- 
cation as far as lay in his power. Not only did he force his 
daughter Liutgarda, in defending herself from a villanous 
accusation, to forego the safer modes of purgation, and to 
submit herself to the perilous decision of a combat, 3 but he 
also caused the abstract question of representation in the 
succession of estates to be settled in the same manner ; and 
to this day in Germany the division of a patrimony among 
children and grandchildren is regulated in accordance with 
the law enacted by the doughty arms of the champions who 
fought together nine hundred years ago at Steil. 4 There was 

1 Luitprandi Antapodos. Lib. in. cap. 46. 

2 Sed istud judicium quorundam laicorum solummodo est, quod nee ipsis 
etiaui omnino approbatur. Nam saepe innocentes victi, nocentes vero 
victores in tali judicio esse videntur.— (De Pressuris Eccles. Pt. n.) This 
was written about 945. 

3 Dithmari Chron. Lib. II. ann. 950. 

4 Widukind. Rer. Saxon. Lib. II. cap. x. — The honest chronicler con- 



136 THE WAGER OF BATTLE. 

no question, indeed, which according to Otho could not be 
satisfactorily settled in this manner. Thus when, in 963, he 
was indulging in the bitter recriminations with Pope John 
XII. which preceded the subjugation of the papacy under 
the Saxon emperors, in sending Bishop Liutprand to Home, 
to repel certain accusations brought against him, he ordered 
the armed followers of his ambassador to sustain his asser- 
tions by the duel: a proposition promptly declined by the 
pontiff, skilled though he was in the use of weapons. 1 A 
duellist, in fact, seems to have been reckoned a necessary 
adjunct to diplomacy, for when, in 968, the same Liutprand 
was dispatched by Otho to Constantinople on a matri- 
monial mission, and during the negotiations for the hand 
of Theophania a discussion arose as to the circumstances 
which had led to Otho's conquest of Italy, the warlike 
prelate offered to prove his veracity by the sword of one 
of his attendants : a proposition which put a triumphant 
end to the argument. 3 

Nor was the readiness to commit the mightiest interests 
to the decision of the judicial duel confined to Germany 
and Lombardy. When, in 948, at the Synod of Ingelheim, 
Louis d'Outremer invoked the aid of the church in his 
death-struggle with the rising race of Capet, he closed the 
recital of the wrongs endured at the hands of Hugh-le- 
Grand by offering to prove the justice of his complaints in 
single combat with the aggressor. 3 When the battle ordeal 
was thus thoroughly incorporated in the manners of the 
age, we need scarcely be surprised that, in a life of St. 

siders that it would have been disgraceful to the nobility to treat questions 
relating to them in a plebeian manner. " Rex autem meliori eonsilio usus, 
noluit viros nobiles ac senes populi inhoneste tractari, sed inagis rem inter 
gladiatores discerni jussit." In both these cases Otho may be said to have 
had ancient custom in his favor. See L. Longobard. Lib. I. Tit. xii. § 2. — 
L. Alamann. cap. fin., lxxxiv. ; Addit. cap. xxn. 

1 Liutprandi Hist. Otton. cap. vii. 

2 Liutprandi Legat. cap. vi. 

3 His si dux contraire audeat, nobis tantum singulariter congrediendum 
sit. — Conquest. Ludov. in Synod. Ingilheim. ann. 948. 



OTIIO II. 131 

Matilda, written by command of her son Otho the Great, 
the author, after describing the desperate struggles of the 
Saxons against Charlemagne, should gravely inform us 
that the war was at last concluded by a duel between the 
Christian hero and his great antagonist Witikind, religion 
and empire being both staked on the issue as the prize of 
the victor; nor does the pious chronicler shudder at the 
thought that the destiny of Christianity was intrusted to 
the sword of the Frank. 1 

The second Otho was fully imbued with his father's 
views, and so completely did he carry them out, that in 
the Lombard law he is actually credited with the intro- 
duction of the duel. 3 In the preceding essay, allusion has 
been made to his substitution of the judicial combat for 
the sacramental oath in 983, and about the same period, he 
made an exception, in favor of the battle ordeal, to the im- 
memorial policy of the barbarians which permitted to all 
subject races the enjoyment of their ancestral usages. At 
the council of Verona, where all the nobles of Italy, secular 
and ecclesiastical, were assembled, he caused the adoption 
of a law which forced the Italians in this respect to follow 
the customs of their conquerors. 3 Even the church was 
deprived of any exemption which she might previously 
have enjoyed, and was only allowed the privilege of ap- 
pearing by her "advocati" or champions. 4 There were 
small chances of escape from the stringency of these regu- 
lations, for an edict of Otho I. in 9T1 had decreed the 

1 Utrisque placuit principibue, ut ipsi singuli invicem dimicaturi consur- 
gerent, et cui sors victoriam contulisset, ipsi totus exercitus sine dubio 
pareret. — S. Mathild. Regin. Vit. c. 1. 

3 Nos belli dono ditat rex maxiinus Otto. 

3 Quacunque lege, sive etiam Romana, in omni regno Italico homo vixeret, 
hasc omnia ut in his capitulis per pugnam decernimus observare. — L. Longo- 
bard. Lib. II. Tit. lv. § 38. 

4 De ecclesiarum rebus ut per advocatos fiat similiter jubemus. — Ibid. 
§ 34. 

12* 



138 THE WAGER OF BATTLE. 

punishment of confiscation against any one who should 
refuse to undergo the chances of the combat. 1 

Under such auspices, and stimulated by the rising spirit 
of chivalry, it is no wonder that the judicial duel acquired 
fresh importance, and was more extensively practised than 
ever. From the wording of a constitution of the Emperor 
Henry II., it may even be assumed that in the early part 
of the eleventh century it was no longer necessary that 
there should be a doubt as to the guilt of the accused to 
entitle him to the privileges of the combat, and that even 
the most notorious criminal could have a chance of escape 
by an appeal to the sword. 3 

Thus it came to pass that nearly every question that 
could possibly arise was finally deemed liable to the 
decision of the wager of battle. ■ If Otho the Great em- 
ployed champions to legislate respecting a disputed point 
of law, he was not more eccentric than the Spaniards, 
who settled in the same manner a controversy regarding 
the canonical observances of religion when the fiery and 
indomitable Hildebrand endeavored to force the introduc- 
tion of the Roman liturgy into Castile and Leon, in lieu of 
the national Gothic or Mozarabic rite. With considerable 
difficulty, some j^ears before, Navarre and Aragon had been 
led to consent to the change, but the Castilians were dog- 
gedly attached to the observances of their ancestors, and 
stoutly refused compliance. In 1077, Alfonso I. procured 
the assent of a national council, but the people rebelled, 
and after repeated negotiations the matter was finally 
referred to the umpirage of the sword. The champion of 
the Gothic ritual was victorious, and tradition adds that 
a second trial was made by the ordeal of fire ; a missal of 

1 Si non audeat, res suas infiscentur. — Convent. Papiens. ann. 971. 

Qui vero infra treugam, post datum osculum paeip, alium hominem in- 
terfecerit, et negare voluerit, pugnaua pro se faciat. — L. Longobard. Lib. i. 
Tit. ix. i 38. 



OTHO OP BAVARIA. 139 

each kind was thrown into the flames, and the national 
liturgy emerged triumphantly unscathed. 1 

Nearly contemporary with this was the celebrated case 
of Otho, Duke of Bavaria, perhaps the most noteworthy 
example of a judicial appeal to the sword, as it proved 
the commencement of the terrible Saxon war, and of the 
troubles which, aggravated by the skilful hand of Hilde- 
brand, pursued the unfortunate Emperor Henry IV. to the 
grave, and did so much to establish the temporal supremacy 
of the papacy. A worthless adventurer, named Egeno, 
accused the proud and powerful Otho of conspiring against 
the Emperor's life. In a diet held at Mainz, the duke was 
commanded to disprove the charge by doing battle with his 
accuser within six weeks. According to some authorities, 
his pride revolted at meeting an adversary so far his infe- 
rior ; according to others, he was prevented from appearing 
in the lists only by the refusal of the Emperor to grant 
him a safe conduct. Be this as it may, the appointed term 
elapsed, his default of appearance caused judgment to be 
taken against him, and his duchy was confiscated accord- 
ingly. It was bestowed on Welf, son of Azo d'Este and of 
Cunigunda, descendant and heiress of the ancient Guelfic 
Agilolfings; and thus, on the basis of a judicial duel, was 
founded the second Bavarian house of Guelf, from which 
have sprung so many royal and noble lines, including their 
Guelfic Majesties of Britain. Some years later, the Em- 
peror himself offered to disprove by the same means a 
similar accusation brought against him by Duke Beginger, 
of endeavoring to assassinate his rival, Bodolph of Swabia. 
A day was appointed for the combat, which was prevented 
only by the opportune death of Beginger. 9 

Scarcely less impressive in its results, and even more 
remarkable in itself, as exhibiting the duel invested witli 

1 Ferreras, Hist. Gen. d'Espagne, Trad. d'Hermilly, III. 245. 
3 Lambert. Schaffnab. ann. 1070, 1073, 1074,-^Conrad. Ursperg. ann. 1071. 
— Bruno de Bello Saxonico. 



140 THE WAGER OF BATTLE. 

legislative as well as judicial functions, is the case wherein 
the wager of battle was employed in 1180 to break the 
overgrown power of Henry the Lion. That puissant 
Duke of Saxony and Bavaria had long divided the power 
of the Empire, and defied the repeated efforts of Frederic 
Barbarossa to punish his constantly recurring rebellions. 
Cited to appear and answer for his crimes in successive 
diets, he constantly refused, on the plea that the law 
required him to have a trial within his own dominions. 
At length, in the diet of Wurtzburg, a noble arose and 
declared himself ready to prove by the single combat that 
the Emperor could legally cite his princes before him at 
any place that he might select within the limits of the em- 
pire. Of course there was none to take up the challenge, 
and Frederic was enabled to erect the principle thus asserted 
into a binding law. Henry was condemned by default, and 
his confiscated possessions were shared between those who 
had arranged and enacted the comedy. 1 

To such an extent was carried the respect entertained for 
the judicial duel, that, by the English law of the thirteenth 
century, a pleader was sometimes allowed to alter the record 
of his preliminary plea, by producing a man who would 
offer to prove with his body that the record was incorrect, 
the only excuse for the absurdity being that it was only 
allowed in matters which could not injure the other side; 3 
and a malefactor turning king's evidence was obliged, be- 
fore receiving his pardon, to pledge himself to convict all 
his accomplices, if required, by the duel. 3 The implicit 

1 Conrad. Ursperg. ann. 1175. — Cumque nullus isti se offerret ad pugnam 
edicto Imperatoris praefatasententia pro jure perpetuo statuta est, quam non 
dubium est autoritate et ratione firmari. 

3 Et statim hoc probare per unum audientem et intelligentem, qui inconti- 
nenti paratus sit hoc probare per corpus suum, si curia consideraverit. Et 
sic poterit quis recordum suum mutare, augere, et minuere, quia ex boc 
nullum damnum habebit adversarius. — Bracton. Lib. in. Tract, ii. cap. 
37 § 5. 

3 Ibid. cap. 33 § 2, and 34 § 2. 



EXPLANATION OF DOUBTFUL CASES. 141 

confidence inspired by the duel is well illustrated by a case 
which occurred about the year 1100. A sacrilegious thief 
named Anselm stole the sacred vessels from the church of 
Laon and sold them to a merchant, from whom he exacted 
an oath of secrecy. Frightened at the excommunications 
fulminated by the authorities of the plundered church, the 
unhappy traitor revealed the name of the robber. Anselm 
denied the accusation, offered the wager of battle, defeated 
the unfortunate receiver of stolen goods, and was proclaimed 
innocent. Encouraged by impunity, he repeated the 
offence, and after his conviction by the ordeal of cold water, 
he confessed the previous crime. The doubts cast by this 
event on the efficacy of the judicial combat were, however, 
happily removed by the suggestion that the merchant had 
suffered for the violation of the oath which he had sworn to 
Anselm ; and the reputation of the duel remained intact. 1 

It may readily be imagined that cases of this nature fre- 
quently arose, and as they often did not admit of so inge- 
nious an explanation of the criminal's escape, legal casuists 
assumed a condition of being, guilty in the sight of God, but 
not in that of man — a refinement of speculation which even 
finds place in the German codes of the thirteenth century; 3 
and men contented themselves then, as they do still, with 
predicting future misfortunes and an eternity of punish- 
ment. The more direct solution, in cases of unjust con- 

1 Guibert. Noviogent. de Vita sua Lib. HI. cap. xvi. — Hermann, de 
Mirac. S. Marise Laudun. Lib. iv. cap. 28. — Forsitan ut multi putarunt, pro 
fidei violate reatu, qua promiserat fidem Anselmo, quod eum non detegeret. 
(Du Cange.) 

2 Und diser Tor Got schuldig, und vor den luten nit. — (Jur. Provin. Ala- 
mann. cap. ccxix. § 8.) This is a provision for cases in which a thief accuses 
a receiver of having suggested and assisted the crime. They are made to 
fight, when, if the receiver is worsted, both are hanged ; if the thief, he alone, 
and the receiver escapes though criminal. The French version enlarges 
somewhat on the principle involved : " Se il puet vancre lautre il est quites 
et li autre sera panduz. et sera an colpe anver lo munde et anver dex andui. 
ce avient a assez de genz, que aucons sunt an colpe anver dex et ne mie anver 
le seigle." — (Miroir. de Souabe, P. n. c. vi.) 



142 THE WAGER OF BATTLE. 

demnation, was very much like that which justified the 
defeat of Anselm's merchant — that the unfortunate victim, 
though innocent of the special offence charged, suffered in 
consequence of other sins. This doctrine was even sup- 
ported by the infallible authority of the papacy, as enun- 
ciated in 1212 by Innocent III. in a case wherein the 
priory of St. Sergius was unjustly convicted of theft by the 
judicial duel, and its possessions were seized in consequence 
by the authorities of Spoleto. 1 That the combatants them- 
selves did not always feel implicit confidence in the justice 
of the event, or rely solely upon the righteousness of their 
cause, is shown by the custom of occasionally bribing 
Heaven either to assist the right or to defend the wrong. 
Thus, in the eleventh century, we find the monastery of St. 
Peter at Beze in the enjoyment of certain lands bestowed 
on the Saint by Sir Miles the Stammerer, who thus en- 
deavored to purchase hj^ assistance in a combat about to 
take place — a bargain no doubt highly appreciated by the 
worthy friars. 2 

Notwithstanding the wrong and injustice wrought by the 
indiscriminate and universal application of so senseless a 
custom, it was so thoroughly engrafted in the convictions 
and prejudices of Europe that centuries were requisite for 
its extirpation. Curiously enough, the earliest decisive 
action against it took place in Iceland, where it was for- 
mally interdicted as a judicial proceeding in 1011 f and 
though the assumption that this was owing to the intro- 
duction of Christianity has been disproved, still the fact 
that both events were contemporaneous allows us to con- 
clude that the teachings of the true religion had a powerful 

1 Can. Significantibus, Extra, De Purgatione Vulgari. — " Duellum in quo 
aliis peccatis suis prsepedientibus, ceciderunt. " 

3 Isdem quoque Milo . . . monomachi certaturus pugna, attribuit saneto 
Petro terrain quam habebat in Lueo, prope atrium ecclesiae, quo sibi adjutor 
in disposito bello existerit. — Chron. Besuense, Chart, de Luco. 

3 Scblegel, Comment, ad Gragas, p. xxii. 



INFLUENCE OF THE COMMUNES. 143 

influence in leading the inhabitants to abandon their an- 
cestral custom. The Danes were the first to follow the 
example. Indeed, Saxo Grammaticus in one passage 
attributes to them the priority, asserting that when Poppo 
in 965 converted Harold Blaatand by the ordeal of red- 
hot iron, it produced so powerful an effect as to induce 
the substitution of that mode of trial for the previously 
existing wager of battle. 1 Yet it evidently was not abro- 
gated for a century later, for when Harold the Simple, son 
of Sven Estrith, ascended the throne in 1074, among the 
legal innovations which he introduced was the substitution 
of the purgatorial oath for all other forms of defence, which, 
Saxo specifically states, put an end to the wager of battle, 
and opened the door to great abuses. 2 

Fiercer tribes than these in Europe there were none, and 
their abrogation of the battle trial at this early age is an 
inexplicable anomaly. It was an exceptional movement, 
however, without results beyond their own narrow boun- 
daries. Other causes had to work slowly and painfully for 
ages before man could throw off the bonds of ancestral 
prejudice. One of the most powerful of these causes was 
the gradual rise of the Tiers-Etat to consideration and 
importance. The sturdy bourgeois, though ready enough 
with morion and pike to defend their privileges, were 
usually addicted to a more peaceful mode of settling 
private quarrels. Devoted to the arts of peace, seeing 
their interest in the pursuits of industry and commerce, 
enjoying the advantage of settled and permanent tribunals, 
and exposed to all the humanizing and civilizing influences 

1 Quo evenit ut Dani, abrogata duellorum consuetudine, pleraque causarum 
judicia eo experimenti genere constatura decernerent, controversiarum exa- 
men rectius ad arbitrium divinum quam ad humanam rixam religandum 
putantes. — Saxon. Grammat. Hist. Dan. Lib. x. 

" Ipsa nanque defendendi potestas non armoruin non testium usu, sed sola 
sacrarnenti fide subnixa, multorum conatus votoruin cupiditate perjurio 
polluit, sed et funditus singularium congressionum usum evertit. Posteris 
nanque susceptas causarum controversias satius jurejurando visum est ex- 
pedire quam ferro. — Ibid. Lib. xr. 



144 THE WAGER OF BATTLE. 

of close association in communities, they speedily acquired 
ideas of progress very different from those of the savage 
feudal nobles living isolated in their fastnesses, or of the 
wretched serfs who crouched for protection around the 
castles of their masters and oppressors. Accordingly, the 
desire to escape from the necessity of purgation by battle 
is almost coeval with the founding of the first communes. 
The earliest instance of the kind that I have met with is 
contained in the charter granted to Pisa by the Emperor 
Henry IV. in 1081, by which he agrees that any accusa- 
tions which he may bring against citizens can be tried 
without battle by the oaths of twelve compurgators, except 
when the penalties of death or mutilation are involved; 
and in questions concerning land, the duel is forbidden 
when competent testimony can be procured. 1 Limited as 
these concessions may seem, they were an immense inno- 
vation on the prejudices of the age, and are important as 
affording the earliest indication of the direction which the 
new civilization was assuming. Not long after, about the 
year 1105, the citizens of Amiens received a charter from 
their bishop, St. Godfrey, in which the duel is subjected to 
some restriction — not enough in itself, perhaps, to effect 
much reform, yet clearly showing the tendency which ex- 
isted. 3 Perhaps the earliest instance of absolute freedom 
from the judicial combat occurs in a charter granted to the 
inhabitants of Bari by Roger, King of Naples, in 1132. 3 In 
that of Meuport, bestowed in 1163, by Philip of Alsace, 

1 Lunig Cod. Diplom. Ital. I. 2455. — The liberal terms of this charter show 
the enlightenment of the Emperor, and explain the fidelity manifested for him 
by the imperial cities in his desperate struggles Avith his rebellious nobles 
and an implacable papacy. 

3 Si conventio aliqua facta fuerit ante duos vel plures scabinos, de con- 
ventione ilia amplius non surget campus vel duellum, si scabini qui conven- 
tion! interfuerint, hoc testificati fuerint. — Chart. Commun. Ambianens. c. 
44. (Migne's Patrolog. T. 162, p. 750). 

3 Ferrum, cacavum, pugnam, aquam, vobis non judicabit vel judicari 
faciet. (Muratori, Antiq. Ital. Dissert. 38.) 



INFLUENCE OF COMMERCE. 145 

while the ordeal of red-hot iron and compurgatorial oaths 
are freely alluded to as means of rebutting accusations, there 
is no reference whatever to the battle trial, showing that 
it was by that time no longer in use. 1 Even in Scotland, 
partial exemptions of the same kind in favor of towns are 
found as early as the twelfth century. A stranger could 
not force a burgher to fight, except on an accusation of 
treachery or theft, while, if a burgher desired to compel a 
stranger to the duel, he was obliged to go beyond the con- 
fines of the town. A special privilege was granted to the 
royal burghs, for their citizens could not be challenged by 
the burghers of nobles or prelates, while they had the right 
to offer battle to the latter. 2 

The special influence exercised by the practical spirit of 
trade in rendering the duel obsolete is well illustrated by 
the privilege granted, in 1 12?, by William Clito to the mer- 
chants of St. Omer, declaring that they should be free from 
all appeals to single combat in all the markets of Flanders. 3 
In a similar spirit, when Frederic Barbarossa, in 1173, was 
desirous of attracting to the markets of Aix-la-Chapelle 
and Duisbourg the traders of Flanders, in the code which 
he established for the protection of such as might come, he 
specially enacted that they should enjoy immunity from the 
duel. 4 Even Russia found it advantageous to extend the 
same exemption to foreign merchants, and in the treaty 
which Mstislas Davidovitch made in 1228 with the Hanse- 
town of Riga, he granted to the Germans who might seek 

1 Oudegherst, Annales de Flandre ed. Lesbroussart. T. n. note ad fin. — 
The laws bestowed by Philippe on the city of Ghent in 1178 have no allu- 
sion to any species of ordeal, and appear to rest altogether on ordinary legal 
processes. — Ibid. T. i. p. 426 sqq. 

3 L. Burgorum c. 14, 15. (Skene.) 

3 In omni mercato Flandriae si quis clamorem adversus eos suscitaverit, 
judicium scabinorum de omni clamore sine duello subeant : ab duello.vero 
ulterius liberi sint — (Warnkonig, Hist, de la Flandre, II. 411.) 

4 Nemo mercatorem de Flandria duello provocabit. (Ibid., II. 426.) 

13 



146 THE WAGER OF BATTLE. 

his dominions immunity from liability to the red-hot iron 
ordeal and wager of battle. 1 

Germany seems to have been somewhat later than France 
or Italy in the movement, yet her burghers evidently re- 
garded it with favor. In 1219, the charter granted to Niirn- 
berg by Frederic II. expressly exempts the citizens from 
the appeal of battle throughout the Empire. 3 The statutes 
of Eisenach, in 1283, provide that no duel shall be ad- 
judged in the town, except in cases of homicide, and then 
only when the hand of the murdered man shall be pro- 
duced in court at the trial. 3 In 1291, Rodolph of Haps- 
burg issued a constitution declaring that the burghers of 
the free imperial cities should not be liable to the duel out- 
side of the limits of their individual towns, 4 and in the 
Kayser-Kecht this privilege is extended by declaring the 
burghers exempt from all challenge to combat, except in a 
suit brought by a fellow-citizen. 5 

All these, however, were special privileges for a limited 
class of men, and their local regulations had no direct 
bearing on general legislation, except in so far as they 
might assist in softening the manners of their generation 
and aiding in the general spread of civilization. A more 
efficient cause was to be found in the opposition of the 

1 Esneaux, Hist, de Russie, II. 273 (Du Boys, Droit Criminel des Peup. 
Mod. I. 603). 

3 Item, nemo aliquem civem loci illius duello impetere debet in toto Ro- 
mano imperio. — Constit. Frid. II. de Jur. Norimb. § 4 (Goldast. Constit. 
Imp. I, 291). 

3 Henke, Geseh. des Deut. Peinlichen Rechts I. 192 (Du Boys, op. cit. 
II. 590). 

4 Nullus vos vel vestrum aliquem modo duellico vel per viam duelli extra 
civitatem citare possit vel debeat evocare. (Goldast. Op. cit. I. 314.) 

6 Imperator eos immunes declaravit a duello, . . . ut non possint con- 
veniri nisi civibus in eadem civitate habitantibus, ubi vir ille moratur cui 
lis movetur. — Jur. Csesar. P. iv. cap. i. (Senekenberg. Corp. Jur. German. 
I. 118). This portion of the Kayser-Recht is probably therefore posterior to 
the rise of the Hapsburg dynasty. 



OPPOSITION OF THE CHURCH. 141 

church, which, as has been seen, never looked upon the 
duel with favor, and constantly endeavored to discredit it. 
Near the close of the twelfth century, Celestin III. pro- 
hibited it in general terms, 1 and he further pronounced that 
champions in such contests, together with principals, were 
guilty of homicide, and liable to all the ecclesiastical penal- 
ties of that crime. 3 Innocent III., moreover, took care that 
the great council of Lateran in 1215 should confirm all the 
previous prohibitions of the practice. 3 How difficult it was 
to enforce respect for these precepts, even among church- 
men, has been shown above, and the persistence of ecclesias- 
tical belief in the divine interposition is fairly illustrated 
by a case, related with great triumph by monkish chroni- 
clers, as late as the fourteenth century, where a duel was 
undertaken by direction of the Yirgin Mary herself. In 
1325, a French Jew feigned conversion to Christianity in 
order to gratify his spleen by mutilating the images in the 
churches, and at length he committed the sacrilege of car- 
rying off the holy wafer to aid in the unknown and hideous 
rites of his fellows. The patience of the Yirgin being at 
last exhausted, she appeared in a vision to a certain smith, 
commanding him to summon the unlucky Israelite to the 
field. A second and a third time was the vision repeated 
without effect, till at last the smith, on entering a church, 
was confronted by the Yirgin in person, scolded for his 
remissness, promised an easy victory, and forbidden to 
pass the church door until his duty should be accomplished. 
He obeyed and sought the authorities. The duel was 
decreed, and the unhappy Hebrew, on being brought into 

1 " In eo casu, vel aliis etiam, hoc non debes aliquatenus tolerare" (Can. 
1, Extra, Lib. v. Tit. xxxv.). The rubric of this canon is even more de- 
cided. — "Duella et aliae purgationes vulgares prohibits sunt, quia per eas 
multoties condemnatur absolvendus, et Deus tentari videtur." 

2 Quod tales pugiles homicidae veri existunt. . . . Homicidium autem, 
taui facto quam praecepto, sive consilio, aut defensione, non est dubium per- 
petrari. — Can. 2, Extra, Lib. v. Tit. xv. 

a Concil. Lateranens. IV. Can. 18. 



148 THE WAGER OP BATTLE. 

the lists, yielded without a blow, falling on his knees, con- 
fessing his unpardonable sins, and crying that he could 
not resist the thousands of armed men who appeared 
around his adversary with threatening weapons. He was 
accordingly promptly burned, to the great satisfaction of 
all believers. 1 Yet for all this, the opposition of the church, 
as authoritatively expressed by successive pontiffs, could 
not but have great influence in opening the minds of men 
to a sense of the cruelty and injustice of the custom. 3 

But perhaps the most potential cause at work was the 
revival of the Roman jurisprudence, which in the thirteenth 
century commenced to undermine all the institutions of 
feudalism. Its theory of royal supremacy was most agree- 
able to sovereigns whose authority over powerful vassals 
was scarcely more than nominal ; its perfection of equity 
between man and man could not fail to render it enticing 
to clear-minded jurists, wearied with the complicated and 
fantastic privileges of ecclesiastical, feudal, and customary 
law. Thus recommended, its progress was rapid. Monarchs 
lost no opportunity of inculcating respect for that which 
served their purpose so well, and the civil lawyers, who 
were their most useful instruments, speedily rose to be a 
power in the state. Of course the struggle was long, for 
feudalism had arisen from the necessities of the age, and a 
system on which were based all the existing institutions of 
Europe could only be attacked in detail, and could only be 
destroyed when the advance of civilization and the general 
diffusion of enlightenment had finally rendered it obsolete. 
The French Revolution was the final battle-field, and that 
terrible upheaval was requisite to obliterate a form of 
society whose existence had numbered nine hundred years. 

1 Willelmi Egmond. Chron. (Matthsei Analect. IV. 231.) 

3 As late as 1492, the Synod of Schwerin promulgated a canon prohibiting 

Christian burial to those who fell in the duel or in tournaments. — Synod. 

Swerin. ann. 1492 Can. xxiv. (Hartzheim Concil. German. V. 647.) 



EFFORTS TO RESTRICT THE DUEL. 149 

The wager of battle was not long in experiencing the 
first assaults of the new power. The earliest efficient steps 
towards its abolition were taken in 1231 by the Emperor 
Frederic II. in his Neapolitan code. He pronounces it to 
be in no sense a legal proof, but only a species of divination, 
incompatible with every notion of equity and justice, and 
he prohibits it for the future, except in cases of murder and 
treason where other proof is unattainable; and even in 
these it is placed at the option of the accuser alone, as if 
to render it a punishment and not a trial. 1 The German 
Imperial code, known as the Kayser-Recht, which was pro- 
bably compiled about the same time, contains a similar 
denunciation of the uncertainty of the duel, but does not 
venture on a prohibition, merely renouncing all responsi- 
bility for it, while recognizing it as a settled custom. 3 In 
the portion, however, devoted to municipal law, which is 
probably somewhat later in date, the prohibition is much 
more stringently expressed, manifesting the influences at 
work ; 3 but even this is contradicted by a passage almost 
immediately preceding it. How little influence these wise 
counsels had, in a state so intensely feudal and aristocratic, 
is exemplified in the Swabian and Saxon codes, where the 
duel plays so important a part. Yet the desire to escape 
it was not altogether confined to the honest burghers of the 
cities, for in 12TT, Rodolph of Hapsburg, even before he 
granted the immunity to the imperial towns, gave a charter 
to the duchy of Styria, securing to the Styrians their privi- 

1 Constit. Sicular. Lib. II. Tit. xxxii. xxxiii. — " Non tarn vera probatio 
quam quaedam divinatio . . . quae naturae non consonans, a jure communi 
deviat, aequitatis rationibus non consentit." 

3 Cum viderit innocentes in duello succubuisse, et sontes contra in sua 
iniustitia nihilominus victoriam obtinuisse. Et ideo in jura imperii scrip- 
turn est, ubi duo ex more in duellum procedunt, hoc non pertinet ad imperium. 
— Jur. Caesar. P. n. c. 70. (Senckenberg I. 54.) 

3 Quilibet sciat imperatorem jussisse ut nemo alterum ad duellum provocet. 
. . . Nemo enim unquam fortiores provocari vidit, sed semper debiliores, 
et fortiores semper triumpharunt —Ibid. P. iv. cap. 19. 

13* 



150 THE WAGER OF BATTLE. 

leges and rights, and in this he forbade the duel in all cases 
where sufficient testimony could be otherwise obtained'; 
while the general tenor of the document shows that this 
was regarded as a favor. 1 

In 1248, Don Jayme I. of Aragon, in revising the fran- 
chises of Majorca, prohibited the judicial combat in both civil 
and criminal cases. 3 Within fifteen years from this, Alfonso 
the Wise of Castile issued the code generally known as Las 
Siete Partidas. In this he evidently desired to curb the 
practice as far as possible, stigmatizing it as a custom pe- 
culiar to the military class (por lid de caballeros 6 de 
peones), and as reprehensible both as a tempting of God 
and as a source of perpetual injustice. 3 Accordingly, he 
subjected it to very important limitations. The wager of 
battle could only be granted by the king himself; 4 it could 
only take place between gentlemen, 5 and in personal actions 
alone which savored of treachery, such as murder, blows, 
or other dishonor, inflicted without warning or by sur- 
prise. Offences committed against property, burning, 
forcible seizure, and other wrongs, even without defiance, 
were specifically declared not subject to its decision, the 
body of the plaintiff being its only recognized justifica- 
tion. 6 Even in this limited sphere, the consent of both 

1 Si inter Stirienses qusestionem contingat oriri, duellum locum non 
habeat, vel probatio per campionem, ubi testes idonei producentur, secundum 
quorum testimonium quaestio dirimatur. — Rudolphi I. Privileg. (Ludewig 
Keliq. MSS. T. IV. p. 260.) 

3 Du Cange, s. v. Batalia. 

3 Los sabios antiguos que ficieron los leyes non la tovieron por derecba 
prueba : ed esto por dos razones ; la una porque mucbas vegadas acaesce 
que en tales lidespierde la verdat e vence la mentira : la otra porque aquel 
que ha voluntad de se aventurar a esta prueba semeja que quiere tentar a 
Dios nuestro senor. — Partidas, P. in. Tit. xiv. 1. 8. 

4 Ibid. P. vii. Tit. iii. 1. 2. 

5 Ibid. P. vn. Tit. iii. 1. 3. 

6 Et sobre todo decimos que non se puede facer riepto sinon sobre cosa 6 
fecbo en que caya traycion 6 aleve ; et por ende si un fidalgo a otro quemare 
6 derribare casas, 6 cortare vifias 6 arboles, 6 forzare baber oheridat, 6 ficiere 



SPAIN. 151 

parties was requisite, for the appellant could prosecute in 
the ordinary legal manner, and the defendant, if challenged 
to battle, could elect to have the case tried by witnesses or 
inquest, nor could the king himself refuse him the right to 
do so. 1 When to this is added that a preliminary trial was 
requisite to decide whether the alleged offence was treach- 
erous in its character or not, it will be seen that the combat 
was hedged around with such difficulties as rendered its 
presence on the statute book scarcety more than an unmean- 
ing concession to popular prejudice ; and if anything were 
wanting to prove the utter contempt of the legislator for 
the decisions of the battle-trial, it is to be found in the reg- 
ulation that if the accused was killed on the field, without 
confessing the truth of the crime imputed, he was to be 
pronounced innocent, as one who had fallen in vindicating 
the truth. 3 The same desire to restrict the duel within the 
narrowest possible limits is shown in the rules concerning 
the employment of champions, as has already been seen. 
Although the Partidas as a scheme of legislation was not as 
successful as it deserved to be, and although it was most 
unwillingly received, still these provisions were lasting, and 
produced the effect designed. The Ordenamiento de Alcala, 
issued by Alfonso XI. in 1348, which remained in force 
for nearly two centuries, repeats the restrictions of the 
Partidas, but in a very cursory manner, and rather in- 
cidentally than directly, showing that the judicial combat 
was then a matter of little importance, and that the 
ordinances of Alfonso the Wise had become part of the 

otro mal que non tanga en su cuerpo, maguer non lehaya ante desafido, non 
es por ende alevoso, nil puede reptar por ello. — Partidas, P. vn. Tit. iii. 
1. 3. 

1 Tres dias debese acordarel reptado para escogeruna de las tres maneras 
que desuso dixiemos, qual mas quisiere porque se libre el pleyto. • . . ca el 
re nin su corte non han de mandar lidian por riepto. — Ibid. P. vn. Tit. iii. 
1. 4. 

2 Muera quito del riepto ; ca razon es que sea quito quien defendiendo la 
verdad recibio muerte. — Ibid. P. vn. Tit. iv. 1. 4. 



152 THE WAGER OF BATTLE. 

national law, to be received as a matter of course. 1 In 
fact, the jurisprudence of Spain was derived so directly 
from the Roman law through the Wisigothic code and its 
Romance recension, the Fuero Juzgo, that the wager of 
battle could never have become so deeply rooted in the 
national faith as among the more purely barbarian races. 
It was therefore more readily eradicated. 

The varying phases of the struggle between progress and 
centralization on the one side, and feudalism and chivalry 
on the other, were exceedingly well marked in France, and 
as the materials for tracing them are abundant, a more 
detailed account of the gradual reform may perhaps have 
interest, as illustrating the long and painful strife which 
has been necessary to evoke order and civilization out of 
the incongruous elements from which modern European 
society has sprung. The sagacity of St. Louis, so rarely 
at fault in the details of civil administration, saw in the 
duel not only an unchristian and unrighteous practice, but 
a symbol of the disorganizing feudalism which he so ener- 
getically labored to suppress. His temper led him rather 
to adopt pacific measures, in sapping by the forms of law 
the foundations of the feudal power, than to break it down 
by force of arms as his predecessors had attempted. The 
centralization of the Roman polity might well appear to 
him and his advisers the ideal of a well ordered state, and 
the royal supremacy had by his period advanced to a point 
where the gradual extension of the judicial prerogatives of 
the crown might prove the surest mode of humbling in time 
the haughty vassals who had so often bearded the sovereign. 
No legal procedure was more closely connected with feudal- 
ism, or embodied its spirit more thoroughly than the wager 
of battle, and Louis accordingly did all that lay in his 
power to abrogate the custom. The royal authority was 
strictly circumscribed, however, and though, in his cele- 

1 Ordenamiento de Alcala, Tit. xxxn. ll.vii. — xi. 



LEGISLATION OP ST. LOUIS. 153 

brated Ordonnance of 1260, he formally prohibited the 
battle trial in the territory subject to his jurisdiction, 1 he 
was obliged to admit that he had no power to control the 
courts of his barons beyond the domains of the crown. 2 
Even within this comparatively limited sphere, we may fairly 
assume from some passages in the Etablissements, compiled 
about the year 12 TO, that he was unable to do away entirely 
with the practice. It is to be found permitted in some 
cases both civil and criminal, of peculiarly knotty character, 
admitting of no other apparent solution. 3 It seems, indeed, 
remarkable that he should have authorized it even between 
brothers, on criminal accusations, only restricting them in 
civil suits to fighting by champions, 4 when the German law 
of nearly the same period forbids the duel, like marriage, 
between relations in the fifth degree, and states that pre- 
viously it had been prohibited to those connected in the 
seventh degree. 5 

1 Nous deffendons a tous les batailles par tout nostre demengne, mes nous 
n'ostons mie les clains, les respons, les convenants, etc. . . . fors que nous 
ostons les batailles, et en lieu des batailles nous meton prueves de tesmoins, 
et si n'oston pas les autres bones preuves et loyaux, qui ont este en court 
laye siques a ore. — Isambert, I. 284. 

Lauriere (Tabl. desOrdonn. p. 17) alludes to an edict to the same purport 
under date of 1240, of whicb I can nowhere else find a trace. 

3 Se ce est en l'obeissance le Roy ; et se ce est hors l'obeissance le Roy, 
gage de bataille. (Etab. de St. Louis, Liv. n. chap, xi., xxix., xxxviii.) 
Beaumanoir repeats it, a quarter of a century later, in the most precise 
terms, " Car tout cil qui ont justice en la conte poent inaintenir lor cort, s'il 
lor plest, selonc l'ancienne coustume ; et s'il lor plest il le poent tenir selonc 
l'establissement le Roy." (Cout. du Beauv. cap. xxxix. § 21.) And again, 
" Car quant li rois Lois les osta de sa cort il ne les osta pas des cours a ses 
barons." (Cap. lxi. § 15.) 

3 Liv. I. chap, xxvii., xci., cxiii. etc. This is so entirely at variance 
with the general belief, and militates so strongly with the opening assertion 
of the Etablissements (Ordonn. of 1260) that I should observe that in the 
chapters referred to the direction for the combat is absolute ; no alternative 
is provided, and there is no allusion to any difference of practice prevailing 
in the royal courts and in those of the barons, such as may be seen, in other 
passages. (Liv. i. chap, xxxviii., Ixxxi., cxi., etc.) 

4 Ibid. Liv. i. chap, clxvii. 

6 Jur. Provin. Alamann. cap. clxxi. §§ 10, 11, 12. 



154 THE WAGER OF BATTLE. 

Even this qualified reform provoked determined opposi- 
tion. Every motive of pride and interest prompted resist- 
ance. The prejudices of birth, the strength of the feudal 
principle, the force of chivalric superstition, the pride of 
self-reliance gave keener edge to the apprehension of losing 
an assured source of revenue. The right of granting the 
wager of battle was one of those appertaining to the hauts- 
justiciers, and so highly was it esteemed that paintings of 
champions fighting frequently adorned their halls as em- 
blems of their prerogatives ; Loysel, indeed, deduces from 
it a maxim, " The pillory, the gibbet, the iron collar, and 
paintings of champions engaged, are marks of high juris- 
diction." 1 This right had a considerable money value, for 
the seigneur at whose court an appeal of battle was tried 
received from the defeated party a fine of sixty livres if he 
was a gentleman and sixty sous if a roturier, besides a 
perquisite of the horses and arms employed, and heavy 
mulcts for any delays which might be asked. 3 Nor was this 
all, for during the centuries of its existence there had 
grown and clustered around the custom an immeasurable 
mass of rights and privileges which struggled lustily against 
destruction. Thus hardly had the ordonnance of prohibi- 
tion been issued when, in 1260, a knight named Mathieu-le- 

1 Pilori, echelle, earquant, et peintures de champions combattans sont 
marques de haute justice. — Instit. Coutum. lav. n. Tit. ii. Regie 47. 

2 Beaumanoir, op. cit. chap. lxi. §§ 11, 12, 13. 

In Normandy, these advantages were enjoyed by all seigneurs justiciers. 
" Tuit chevalier et tuit sergent ont en leurs terres leur justice de bataille en 
cause citeaine ; et quant li champions sera vaincuz, il auront LX. sols et I 
denier dela recreandise." — Etab. de Normandie (Ed. Marnier, p. 30). These 
minutely subdivided and parcelled out jurisdictions were one of the most 
prolific causes of debate during the middle ages, not only on account of the 
power and influence, but also from the profits derived from them. That the 
privilege of decreeing duels was not the least remunerative of these rights is 
well manifested by the decision of an inquest held during the reign of Philip 
Augustus to determine the conflicting jurisdictions of the ducal court of Nor- 
mandy and of the seigneurs of Vernon. It will be found quoted in full by 
Beugnot in his notes to the Olim, T. I. p. 969. 



RESISTANCE OF FEUDALISM. 155 

Yoyer actually brought suit against the king for the loss 
it inflicted upon him. He dolefully set forth that he en- 
joyed the privilege of guarding the lists in all duels adjudged 
in the royal court at Corbon, for which he was entitled to 
receive a fee of five sous in each case ; and, as his occupation 
thus was gone, he claimed compensation, modestly suggest- 
ing that he be allowed the same tax on all inquests held 
under the new law. 1 

But the loss of money was less important than the cur- 
tailment of privilege and the threatened absorption of 
power of which this reform was the precursor. Every step 
in advancing the influence of peaceful justice, as expounded 
by the jurists of the royal courts, was a heavy blow to the 
independence of the feudatories. They felt their ancestral 
rights assailed at the weakest point, and they instinctively 
recognized that, as the jurisdiction of the royal bailiffs 
became extended, and as appeals to the court of the Parle- 
ment of Paris became more frequent, their importance was 
diminished, and their means of exercising a petty tyranny 
over those around them were abridged. Entangled in the 
mazes of a code in which the unwonted maxims of Roman 
law were daily quoted with increasing veneration, the im- 
petuous seigneur found himself the prey of those whom he 
despised, and he saw that subtle lawyers were busily undo- 
ing the work at which his ancestors had labored for cen- 
turies. These feelings are well portrayed in a song of the 
period, exhumed not long since by Le Roux de Lincy. 
Written apparently by one of the sufferers, it gives so 
truthful a view of the conservative ideas of the thirteenth 
century that a translation of the first stanza may not be 
amiss : — 



1 Les Olim, I. 491. It is perhaps needless to add that Mathieu's suit was 
rejected. There are many cases recorded in the Olim showing the questions 
which arose and perplexed the lawyers, and the strenuous efforts made by 
the petty seigneurs to preserve their privileges. 



156 THE WAGER OF BATTLE. 

Gent de France, mult estes esbahis ! 

Je di a touz ceus qui sont nez des fiez, etc. 1 

Ye men of France, dismayed and sore 

Ye well may be. In sooth, I swear, 
Gentles, so help me God, no more 

Are ye the freemen that ye were ! 
Where is your freedom ? ye are brought 

To trust your rights to inquest-law, 
Where tricks and quibbles set at naught 

The sword your fathers wont to draw. 
Land of the Franks ! — no more that name 

Is thine — a land of slaves art thou, 
Of bondsmen, wittols, who to shame 

And wrong must bend submissive now ! 

Even legists — de Fontaines, whose admiration of the Di- 
gest led him on all occasions to seek an incongruous alliance 
between the customary and imperial law, and Beaumanoir, 
who in most things was far in advance of his age, and who 
assisted so energetically in the work of centralization — even 
these enlightened lawyers hesitate to object to the principles 
involved in the battle trial, and while disapproving of the 
custom, express their views in language which contrasts 
strongly with the vigorous denunciations of Frederic II. 

half a century earlier. 2 
I 

1 Kecueil de Chants Historiques Francais, I. 218. — It is not unreasonable 
to conjecture that these lines may have been occasioned by the celebrated 
trial of Enguerrand de Coucy in 1256. On the plea of baronage, he demanded 
trial by the Court of Peers, and claimed to defend himself by the wager of 
battle. St. Louis proved that the lands held by Enguerrand were not 
baronial, and resisted with the utmost firmness the pressure of the nobles 
who made common cause with the culprit. On the condemnation of de 
Coucy, the Count of Britanny bitterly reproached the king with the degrada- 
tion inflicted on his order by subjecting its members to inquests. — Beugnot, 
Olim I. 954. — Grandes Chroniques ann. 1256. 

2 Et se li uns et li autres est si enreues, qu'il n'en demandent nul amesure- 
ment entrer pueent par folie en perill de gages. — (Conseil, chap. xv. Tit. 
xxvii.) — Car bataille n'a mie leu oil justise a mesure. — (Ibid. Tit. xxvii.) — 
Mult a de perix en plet qui est de gages de bataille, et mult est grans mestiers 
c'on voist sagement avant en tel cas. — (Cout. du Beauv. chap. lxiv. § 1.) — 



PHILIPPE-LE-BEL. 157 

How powerful were the influences thus brought to bear 
against the innovation is shown by the fact that when the 
mild but firm hand of St. Louis no longer grasped the 
sceptre, his son and successor could not maintain his 
father's laws, and allowed himself to preside at a judicial 
duel about the year 1283, scarcely more than twenty years 
after the promulgation of the ordonnance of prohibition. 1 
The next monarch, Philippe-le-Bel, was at first guilty of 
the same weakness, for when in 1293 the Count of Armagnac 
accused Raymond Bernard of Foix of treason, a duel 
between them was decreed, and they were compelled to fight 
before the King at Gisors ; though Robert d'Artois inter- 
fered after the combat had commenced, and induced Philippe 
to separate the antagonists. 3 Philippe, however, was too 
astute not to see that his interest lay in humbling feudalism 
in all its forms ; while the rapid extension of the jurisdic- 
tion of the crown, and the limitations on the seignorial 
courts, so successfully invented and asserted by the lawyers, 
acting by means of the Parlement through the royal 
bailiffs, gave him power to carry his views into effect such 
as had been enjoyed by none of his predecessors. Able and 
unscrupulous, he took full advantage of his opportunities 
in every way, and the wager of battle was not long in ex- 
periencing the effect of his encroachments. Still he pro- 
ceeded step by step, and the vacillation of his legislation 
shows how obstinate was the spirit with which he had to 
deal. In 1296 he prohibited the judicial duel in time of 
war, 3 and in 1303 he was obliged to repeat the prohibition. 4 

Car ce n'est pas coze selonc Diu de soufrir gages en petite querele de meubles 
ou d'eritages ; mais coustume les suefre es vilains cas de crieme. — Ibid, 
chap. vi. § 31. 

1 Beaumanoir, op. cit. chap. Ixi. § 63. 

2 Grandes Chroniques, T. IV. p. 104. 

3 Quod durante guerra regis, inter aliquos gagia duelli nullatenus admit- 
tantur, sed quilibet in curiis regis et subditoruin suorum jus suum via ordi- 
naria prosequatur. — Isambert, II. 702. 

4 Ibid. II. 806. 

14 



158 THE WAGER OF BATTLE. 

It was probably not long after this that he interdicted the 
duel wholly 1 — possibly impelled thereto by a case occurring 
in 1303, in which he is described as forced to grant the 
combat between two nobles, on an accusation of murder, 
very greatly against his wishes, and in spite of all his 
efforts to dissuade the appellant. 3 

In thus abrogating the wager of battle, Philippe-le-Bel 
was in advance of his age. Before three years were over 
he was forced to abandon the position he had assumed ; 
and though he gave as a reason for the restoration of the 
duel that its absence had proved a fruitful source of en- 
couragement for crime and villany, 3 yet at the same time 
he took care to place on record the assertion of his own 
conviction that it was worthless as a means of seeking 
justice. 4 In thus legalizing it by the Ordonnance of 1306, 

1 I have not been able to find this Ordonnance. Lauriere alludes to it 
(Tabl. des Ordonn. p. 59), but the passage of Du Cange which he cites refers 
only to a prohibition of tournaments. The collection of Isambert contains 
nothing of the kind, but that some legislation of this nature actually oc- 
curred is evident from the preamble to the Ordonnance of 1306 — " Savoir 
faisons que comme ca en arriere, pour le commun prouffit de nostre roy- 
aume, nous eussions deffendu generaument a tous noz subgez toutes manieres 
de guerres et tous gaiges de batailles, etc." It is worthy of note that these 
ordonnances of Philippe were no longer confined to the domain of the crown, 
but purported to regulate the customs of the whole kingdom. 

2 Willelmi Egmond. Chron. (Matthsei Analect. IV. 135-7.) 

3 Dont pluseurs malfaicteurs se sont avancez par la force de leurs corps et 
faulx engins a faire homicides, traysons et tous autres malefices, griefz et 
excez, pource que quant ilz les avoient fais couvertement et en repost, ilz ne 
povoient estre convaincuz par aucuns tesmoings dont par ainsi le malefice se 
tenoit. — Ordonnance de 1306 (Ed. Crapelet, p. 2). 

4 Car entre tous les perilz qui sont, est celui que on doit plus craindre et 
doubter, dont maint noble s'est trouve deceu ayant bon droit ou non, par 
tropconfier en leurs engins et en leurs forces ou par leurs ires oultrecuidees. 
— Ibid. p. 34. A few lines further on, however, the Ordonnance makes a con- 
cession to the popular superstition of the time in expressing a conviction that 
those who address themselves to the combat simply to obtain justice may ex- 
pect a special interposition of Providence in their favor. ' ' Et se 1' interesse, 
sans orgueil ne maltalent, pour son bon droit seulement, requiert bataille, ne 
doit doubter engin ne force, car le vrny juge sera pour luy. " 



PHTLIPPE-LE-BEL. 159 

however, he by no means replaced it on its former footing. 
It was restricted to criminal cases involving the death 
penalty, excepting theft, and it was only permitted when 
the crime was notorious, the guilt of the accused probable, 
and no other evidence attainable. 1 The ceremonies pre- 
scribed, moreover, were fearfully expensive, and put it out 
of the reach of all except the wealthiest pleaders. As the 
Ordonnance, which is very carefully drawn, only refers to 
appeals made by the prosecutor, it may fairly be assumed 
that the defendant could merely accept the challenge and 
had no right to offer it. 

Even with these limitations, Philippe was not disposed 
to sanction the practice within the domains of the crown, 
for, the next year (lSOt), we find him commanding the 
seneschal of Toulouse to allow no duel to be adjudged in 
his court, but to send all cases in which the combat might 
arise to the Parlement of Paris for decision. 2 This was 
equivalent to a formal prohibition. During the whole of 
the period under consideration, numerous causes came before 
the Parlement concerning challenges to battle, dn appeals 
from various jurisdictions throughout the country, and it 
is interesting to observe how uniformly some valid reason 
was found for its refusal. In the public register of deci- 
sions, extending from 1254 to 1318, no single instance of 
its permission is to be found. 3 The civil lawyers compos- 

1 Ordonnance de 1306, cap. i. 2 Isambert, II. 850. 

3 See Les Olim, passim. Two judgments of the Parlement in 1309 show the 
observance of the Ordonnance of 1306, for, while admitting that the duel 
could take place, the cases are settled by inquest, as capable of proof by in- 
vestigation. In another instance, however, the appellant is fined at the 
pleasure of the king, for challenging his opponent without due grounds. 
(Olim, III. 381-7.) Considerable ingenuity was manifested by the Parle- 
ment in thus uniformly finding some sufficient excuse for refusing the duel 
in the vast variety of cases brought before it. This is sometimes effected 
by denying the jurisdiction of the court which had granted it, and sometimes 
for other reasons more or less frivolous, the evident intention discernible in 
all the arrets being to restrict the custom within limits so narrow as to 
render it practically a nullity. 



160 THE WAGER OF BATTLE. 

ing that powerful body knew too well the work for which 
they were destined. 

In spite of these efforts, the progress of reform was 
slow. On the breaking out afresh of the perennial contest 
with Flanders, Philippe found himself, in 1314, obliged to 
repeat his order of 1296, forbidding all judicial combats 
during the war, and holding suspended such as were in pro- 
gress. 1 As these duels could have little real importance 
in crippling his military resources, it is evident that he 
seized such occasions to accomplish under the war power 
what his peaceful prerogative was unable to effect, and it 
is a striking manifestation of his zeal in the cause, that he 
could turn aside to give attention to it amid the preoccu- 
pations of the exhausting struggle with the Flemings. 
Yet how little impression he made, and how instinctively 
the popular mind still turned to the battle ordeal, as the 
surest resource in all cases of doubt, is well illustrated by 
a passage in a rhyming chronicle of the day. When the 
close of Philippe's long and prosperous reign was dark- 
ened by the terrible scandal of his three daughters-in-law, 
and two of them were convicted of adultery, Godefroy de 
Paris makes the third, Jeanne, wife of Philippe-le-Long, 
offer at once to prove her innocence by the combat : — 

Grentil roy, je vous requier, sire, 
Que vous ni'oyez en deffendant. 
Se nul ou nule, demandant 
Me vait chose de mauvestie, 
Mon cuer sens si pur, si liaitie, 
Que bonement me deffendrai, 
Ou tel champion baillerai, 
Qui bien saura mon droit deffendre, 
S'il vous plest a mon gage prendre. 2 

The iron hand of Philippe was no sooner withdrawn 
than the nobles made desperate efforts to throw off the 

1 Isambert, III. 40. 

3 Chronique Metrique, 1. 6375. 



REACTION UNDER LOUIS X. 1GI 

yoke which he had so skilfully and relentlessly imposed 
on them. His son, Louis-le-Hutin, not yet firmly seated 
on the throne, was constrained to yield a portion of the 
newly-acquired prerogative. The nobles of Burgundy, for 
instance, in their formal list of grievances, demanded the 
restoration of the wager of battle as a right of the accused 
in criminal cases, and Louis was obliged to promise that 
they should enjoy it according to ancient custom. 1 Those 
of Amiens and Yermandois were equally clamorous, and 
for their benefit he re-enacted the ordonnance of 1306, per- 
mitting the duel in criminal prosecutions, where other 
evidence was deficient, with an important extension autho- 
rizing its application to cases of theft, in opposition to 
previous usage. 2 The nobles of Champagne made the 
same demand, but Louis, by right of his mother, Jeanne 
de Champagne, was Count of Champagne, and his autho- 
rity was less open to dispute. He did not venture on a„ 
decided refusal, but an evasive answer, which was tanta- 
mount to a denial of the request, 3 showed that his previous 
concessions were extorted, not willingly granted. Not 
content with this, the Champenois repeated their demand, 
and received the dry response, that the existing edicts on 
the subject must be observed.* 

The threatened disturbances were avoided, and during 
the succeeding years the centralization of jurisdiction in 
the royal courts made rapid progress. It is a striking evi- 
dence of the successful working of the plans of St. Louis 
and Philippe-le-Bel that several ordonnances and charters 
granted by Philippe-le-Long in 1318 and 1319, while pro- 

1 Et quant au gage de bataille, nous voullons que il en usent, si comnie 
1'en fesoit anciennement. — Ordonn. Avril 1315, cap. 1. (Isambert, III. 62.) 

2 Nous voullons et octroions que en cas de raurtre, de larrecin, de rapt, de 
trahison et de roberie, gage de bataille soit ouvert, se les cas ne pouvoient 
estre prouvez par tesraoings. — Ordonn. 15 Mai 1315. (Isambert III. 74.) 

3 Ordonn. Mai 1315, P. i.^bap. 13. (Isambert III. 90.) 

4 Ibid. P. ii. chap. 8. (Isambert III. 95.) 

14* 



1G2 THE WAGER OP BATTLE. 

mising reforms in the procedures of the bailiffs and senes- 
chals, and in the manner of holding inquests, are wholly 
silent on the subject of the duel, affording a fair inference 
that complaints on that score were no longer made. 1 Phi- 
lippe of Yalois was especially energetic in maintaining the 
royal jurisdiction, and when in 1330 he was obliged to re- 
strict the abusive use of appeals from the local courts to the 
Parlement, 3 it is evident that the question of granting or 
withholding the wager of battle had become practically a 
prerogative of the crown. That the challenging of witnesses 
must ere long have fallen into desuetude is shown by an 
edict of Charles YL, issued in 1396, by which he ordered 
that the testimony of women should be received in evidence 
in all the courts throughout his kingdom. 3 

Though the duel was thus deprived, in France, of its 
importance as an ordinary legal procedure, yet it was by 
.no means extinguished, nor had it lost its hold upon the 
confidence of the people. An instructive illustration of 
this is afforded by the well-known story of the Dog of 
Montargis. Though the learned Bullet 4 has demonstrated 
the fabulous nature of this legend, and has traced its pa- 
ternity up to the Carlovingian romances, still the fact is 
indubitable that it was long believed to have occurred in 
13*11, under the reign of Charles-le-Sage, and that authors 
nearly contemporary with that period recount the combat 
of the dog and the knight as an unquestionable fact, ad- 
miring greatly the sagacity of the animal, and regarding 
as a matter of course- both the extraordinary judicial pro- 
ceedings and the righteous judgment of God which gave 
the victory to the greyhound. 

In 1386, the Parlement of Paris was occupied with a 
subtle discussion as to whether the accused was obliged, 
in cases where battle was gaged, to give the lie to the 

1 Isambert, III. 196-221. % 

2 Ordonn. 9 Mai 1330 (Isambert, IV. 369). 

3 Neron, Recueil d'Edits, I. 16. 

4 Dissertations sur la Mythologie Franpaise. 



CASE OF JACQUES LE GRIS. 163 

appellant, under pain of being considered to confess the 
crime charged, and it was decided that the lie was not 
essential. 1 The same year occurred the celebrated duel 
between the Chevalier de Carrouges and Jacques le Gris, 
so picturesquely described by Froissart, to witness which 
the King shortened a campaign, and in which the appellant 
was seconded by Waleran, Count of St. Pol, son-in-law of 
the Black Prince. Nothing can well be more impressive 
than the scene presented by the chronicler. The cruelly 
wronged Dame de Carrouges, clothed in black, is mounted 
on a sable scaffold, watching the varying chances of the 
unequal combat between her husband, weakened by disease, 
and his vigorous adversary ; with the fearful certainty that, 
if might alone prevail, he must die a shameful death and 
she be consigned to the stake. Hope grows faint and 
fainter ; a grievous wound seems to place Carrouges at the 
mercy of his adversary, until at the last moment, when all 
appeared lost, she sees the avenger drive his sword through 
the body of his prostrate enemy, vindicating at once his 
wife's honor and his own good cause. 2 Froissart, however, 
was rather an artist than an historian ; he would not risk 
the effect of his picture by too rigid an adherence to facts, 
and he omits to mention, what is told by the cooler Juvenal 
des Ursins, that Le Gris was subsequently proved innocent 
by the death-bed confession of the real offender. 3 To make 
the tragedy complete, the Anonyme de S. Denis adds that 
the miserable Dame de Carrouges, overwhelmed with re- 
morse at having unwittingly caused the disgrace and death 
of an innocent man, ended her days in a convent.* So 
striking a proof of the injustice of the battle ordeal is said 
by some writers to have caused the abandonment of the 
practice ; but this, as will be seen, is an error, though no 

1 De Lauriere, note on Loysel, Instit. Coutum. Lib. vi. Tit. i. Regie 22. 
3 Froissart, Liv. in. chap. xlix. (Ed. Buchon, 1846.) 

3 Hist, de Charles VI. ann. 1386. 

4 Hist, de Charles VI. Liv. VI. chap. ix. 



164 THE WAGER OF BATTLE, 

further trace of the combat as a judicial procedure is to be 
found on the registers of the Parlement of Paris. 1 

In 1409, the battle trial was materially limited by an or- 
donnance of Charles YI. prohibiting its employment except 
when specially granted by the King or the Parlement; 2 
and though the latter body may never have exercised the 
privilege thus conferred upon it, the King occasionally did, 
as we find him during the same year presiding at a judicial 
duel between Guillaume Bariller, a Breton knight, and John 
Carrington, an Englishman. 3 The English occupation of 
France, under Henry V. and the Regent Bedford, revived 
the practice, and removed for a time the obstacles to its 
employment. Nicholas Upton, writing in the middle of 
the fifteenth century, repeatedly alludes to the numerous 
cases in which he assisted as officer of the Earl of Salis- 
bury, Lieutenant of the King of England; and in his 
chapters devoted to defining the different species of duel, 
he betrays a singular confusion between the modern ideas 
of reparation of honor and the original object of judicial 
investigation, thus fairly illustrating the transitional cha- 
racter of the period. 4 

It was about this time that Philippe-le-Bon, Duke of 
Burgundy, formally abolished the wager of battle, as far 
as lay in his power, throughout the extensive dominions of 
which he was sovereign, and in the Coutumier of Bur- 
gundy, as revised by him in 1459, there is no trace of it to 
be found. The code in force in Britanny until 1539 per- 
mitted it in cases of treason, theft, and perjury, — the latter, 
as usual, extending it over a considerable range of civil 

1 Buehon, Notes to Froissart, II. 537. 

2 Que jamais nuls ne fussent receus au royaume de France a faire gages 
de bataille ou faict d'armes, sinon qu'il y eust gage juge par le roy, ou la 
cour de parlement. — Juvenal des TJrsins, ann. 1409. 

3 Monstrelet, Liv. I. chap. Iv. 

4 Nic. Uptoni de Militari Officio Lib. n. cap. iii. iv. (p. 72-73). 



THE FIFTEENTH CENTURY. 165 

actions. 1 In Normandy, the legal existence of the judicial 
duel was even more prolonged, for it was not until the 
revision of the coutumier in 1583, under Henry III., that 
the privilege of deciding in this way numerous cases, both 
civil and criminal, was formally abolished. 2 Still it may 
be assumed that practically the custom had long been ob- 
solete, though the tardy process of the revision of the local 
customs allowed it to remain upon the statute-book to so 
late a date. The fierce mountaineers of remote Beam clung 
to it more obstinately, and in the last revision of their 
code, in 1552, it retains its place as a legitimate means of 
proof, in default of other testimony, with a heavy penalty 
on the party who did not appear upon the field at the 
appointed time. 3 

During this long period, examples are to be found which 
show that although the combat was falling into disuse, it 
was still a legal procedure, which, in certain cases, could 
be claimed as a right, or which could be decreed and en- 
forced by competent judicial authority. In 1455, the tri- 
bunals at Yalenciennes ordered the duel between two 
bourgeois, of whom one had appealed the other for the 
murder of a kinsman. Neither party desired the battle, 
but the municipal government insisted upon it, and fur- 
nished them with instructors to teach the use of the staff 
and buckler, allowed as arms. The Count de Charolois, 
Charles-le-Temeraire, endeavored to prevent the useless 
cruelty, but the city held any interference as an infringe- 
ment of its chartered rights ; and, after long negotiations, 
Philippe-le-Bon, the suzerain, authorized the combat, and 
was present at it, when the appellant literally tore out the 

1 Tres Ancienne Cout. de Bretagne, chap. 132, 134 (Bourdot de Riche- 
bourg). 

3 Ancienne Cout. de Normandie, chap. 53, 68, 70, 71, 73 etc. (Bourdot 
de Richebourg). 

3 Fors et Cost, de Beam, Rubr. de Batalha (Bourdot de Richebourg, IV. 
1093). 



166 THE WAGER OF BATTLE. 

heart of his antagonist. 1 Such incidents among roturiers, 
however, were rare. More frequently some fiery gentleman 
claimed the right of vindicating his quarrel at the risk of 
his life. Thus, in 1482, shortly after the battle of Nancy 
had reinstated Rene, Duke of Lorraine, on the ruins of 
the second house of Burgundy, two gentlemen of the vic- 
tor's court, quarrelling over the spoils of the battle-field, 
demanded the champ-clos ; it was duly granted, and on 
the appointed day the appellant was missing, to the great 
discomfiture and no little loss of his bail. 3 When Charles 
d'Armagnac, in 1484, complained to the States General 
of the inhuman destruction of his family, committed by 
order of Louis XL, the Sieur de Castelnau, whom he 
accused of having poisoned his mother, the Countess 
d'Armagnac, appeared before the assembly, and his advocate 
denying the charge, presented his offer to prove his inno- 
cence by single combat. 3 In 1518, Henry II. of Navarre 
ordered a judicial duel at Pau between two contestants, of 
whom the appellant made default ; the defendant was ac- 
cordingly pronounced innocent, and was empowered to 
drag through all cities, villages, and other places through 
which he might pass, the escutcheon and effigy of his ad- 
versary, who was further punished by the prohibition 
thenceforth to wear arms or knightly bearings. 4 In 1538, 
Francis I. granted the combat between Jean du Plessis 

1 Mathieu de Coussy, chap. cxii. 

3 D. Calmet, Hist, de Lorraine. By the old German law, the bail of a 
defaulting combatant was condemned to lose a hand, which, however, he 
had the privilege of redeeming at its legal value (Jur. Provin. Alaman. cap. 
ccclxxxvi. § 32 — Ed. Schilter.), or, according to another text, he was liable 
to the punishment incurred by his principal if convicted. (Ibid. cap. clxxiii. 
§ 13 — Ed. Senckenberg.) 

3 Jehan Masselin, Journal des Etats de Tours, p. 320. 

4 Archives de Pau, apud Mazure et Hatoulet, Fors de Beam, p. 130. 
There may have been something exceptional in this case, since the punish- 
ment was so much more severe than the legal fine of 16 sous quoted above. 
(Fors de Morlaas, Rubr. IV.) 



THE SIXTEENTH CENTURY. 16T 

and Gautier de Dinteville, which would appear to have 
been essentially a judicial proceeding, since the defendant 
not appearing at the appointed time, was condemned to 
death by sentence of the high council, Feb. 20, 1538. 1 The 
duel thus was evidently still a matter of law, which vindi- 
cated its majesty by punishing the unlucky contestant 
who shrank from the arbitrament of the sword. 

Allusion has already been made to the celebrated com- 
bat between Chastaigneraye and Jarnac, in 1547, wherein 
the death of the former, a favorite of Henry II., led the 
monarch to take a solemn oath never to authorize another 
judicial duel. Two years later, two young nobles of his 
court, Jacques de Fontaine, Sieur de Fendilles, and Claude 
des Guerres, Baron de Yienne-le-Chatel, desired to settle 
in this manner a disgusting accusation brought against the 
latter by the former. The king being unable to grant 
the appeal, arranged the matter by allowing Robert de la 
Marck, Marshal of France and sovereign prince of Sedan, 
to permit it in the territory of which he was suzerain. 
Fendilles was so sure of success that he refused to enter 
the lists until a gallows was erected and a stake lighted, 
where his adversary after defeat was to be gibbeted and 
burned. Their only weapons were broadswords, and at 
the first pass Fendilles inflicted on his opponent a fearful 
gash in the thigh. Des Guerres, seeing that loss of blood 
would soon reduce him to extremity, closed with his an- 
tagonist, and being a skilful wrestler, speedily threw him. 
Reduced to his natural weapons, he could only inflict 
blows with the fist, which failing strength rendered less 
and less effective, when a scaffold crowded with ladies and 
gentlemen gave way, throwing down the spectators in a 
shrieking mass. Taking advantage of the confusion, the 
friends of des Guerres violated the law which imposed ab- 
solute silence and neutrality on all, and called to him to 

1 D. Cahnet, Hist de Lorraine 



168 * THE WAGER OP BATTLE. 

blind and suffocate his adversary with sand. Des Guerres 
promptly took the hint, and Fendilles succumbed to this 
unknightly weapon. Whether he formally yielded or not 
was disputed. Des Guerres claimed that he should un- 
dergo the punishment of the gallows and stake prepared for 
himself, but de la Marck interfered, and the combatants were 
both suffered to retire in peace. 1 This is the last recorded 
instance of the wager of battle in Trance. The custom 
appears never to have been formally abolished, and so little 
did it represent the thoughts and feelings of the age which 
witnessed the Reformation, that when in 1566, Charles IX. 
issued an edict prohibiting duels, no allusion was made to 
the judicial combat. The encounters which he sought to 
prevent were solely those which arose from points of honor 
between gentlemen, and the offended party was ordered 
not to appeal to the courts, but to lay his case before the 
Marshals of France, or the governor of his province. 3 The 
custom had died a natural death. ]STo ordonnance was 
necessary to abrogate it ; and, seemingly from forgetful- 
ness, the crown appears never to have been divested of the 
right to adjudge the wager of battle. 

In Hungary, it was not until 1492 that any attempt was 
made to restrict the judicial duel. In that year, Yladislas 
II. prohibited it in cases where direct testimony was pro- 
curable ; where such evidence was unattainable, he still 
permitted it, both in civil and criminal matters, and he 
alleged as his reason for the restriction, the frauds occa- 
sioned by the almost universal employment of champions. 
The terms of the decree show that previously its use was 
general, though he declared it to be a custom unknown 

1 Brantome, Discours sur les Duels. An account of this duel, published 
at Sedan, in 1620, represents it as resulting less honorably to Fendilles. He 
is there asserted to have formally submitted, and to have been contempt- 
uously tossed out of the lists like a sack of corn, des Guerres marching off 
triumphantly, escorted with trumpets. 

3 Fontanon, I. 665. 



HUNGARY — ITALY — RUSSIA. 169 

elsewhere. 1 Even the precocious civilization of Italy, which 
usually preferred astuteness to force, could not shake off 
the traditions of the Lombard law until the sixteenth cen- 
tury. In 1505, Julius II. forbade the duel under the seve- 
rest penalties, both civil and ecclesiastical, in a decretal, 
of which the expressions allow the fair conclusion that 
until then the wager of battle was still in some cases em- 
ployed as a legal process within the confines of the pontifical 
states. 3 

In Russia, under the code known as the Oulogenie Za- 
konof, promulgated in 1498, any culprit, after his accuser's 
testimon}^ was in, could claim the duel ; and as both parties 
went to the field accompanied by all the friends they could 
muster, the result was not infrequently a bloody skirmish. 
These abuses were put an end to by the Soudebtnick, is- 
sued in 1550, and the duel was regulated after a more 
decent fashion, but it continued to nourish legally, until it 
was finally abrogated in 1649 by the Czar Alexis Mikhailo- 
witch, in the code known as the Sobornoie Oulogenie. The 
more enlightened branch of the Sclavonic race, however, 
the Poles, abolished it in the fourteenth century; but 
Macieiowski states that in Servia and Bulgaria the custom 
has been preserved to the present day* 

In other countries, the custom likewise lingered to a 
comparatively late period. Scotland, indeed, was some- 
what in advance of her neighbors ; for in the year 1400, 
the Parliament showed the influence of advancing civiliza- 

1 Quia in duellorum dimicatione plurimae hinc inde fraudes committi pos- 
sunt ; raro enim illi inter quos illu^fit judicium per se decertant, sed pugi- 
les conducunt, qui nonnunquam dono, favore, et promissis corrumpuntur. — 
L. Uladis. II. c. ix. (Batthyani, I. 531). 

2 Duellorum et gladiatorum hujustnodi usum damnamus et Improbamus, 
et in terris Rom. Ecclesise mediate vel immediate subjectis . . . . e quacunque 
causa, etiam a legibus permissa, fieri omnino prohibemus. — Can. Regis 
Pacifici, De Duello, in Septimo. 

3 For tbese details I am indebted to Du Boys, Droit Criminel des Peuples 
Modernes, I. Gll-17, 650. 

15 



110 THE WAGER OF BATTLE. 

tion by limiting the practice in several important particu- 
lars, which, if strictly observed, must have almost rendered 
it obsolete. Four conditions were pronounced essential 
prerequisites : the accusation must be for a capital crime ; 
the offence must have been committed secretly and by 
treachery ; reasonable cause of suspicion must be shown 
against the accused, and direct testimony both of witnesess 
and documents must be wanting. 1 

Still the " perfervida ingenium Scotorum" clung to the 
arbitrament of the sword with great tenacity. Knox relates 
that in 1562, when the Earl of Arran was consulting with 
him and others respecting a proposed accusation against 
Bothwell for high treason arising out of a plan for seizing 
Queen Mary which Bothwell had suggested, the Earl re- 
marked, " I know that he will offer the combate unto me, 
but that would not be suffered in France, but I will do that 
which I have proposed." In 1561, also, when Bothwell 
underwent a mock trial for the murder of Darnley, he 
offered to justify himself by the duel ; and when the Lords 
of the Congregation took up arms against him, alleging as 
a reason the murder and his presumed designs against the 
infant James II., Queen Mary's proclamation against the 
rebels recites his challenge as a full disproval of the charges. 
When the armies were drawn up at Carberry Hill, Both- 
well again came forward and renewed his challenge. James 
Murray, who had already offered to accept it, took it up 
at once, but Bothwell refused to meet him on account of 
the inequality in their rank. Murray's brother, William 
of Tullibardin, then offered himself, and Bothwell again 
declined, as the Laird of Tulliffardin was not a peer of the 
realm. Many nobles then eagerly proposed to take his 
place, and Lord Lindsay especially insisted on being al- 
lowed the privilege of proving the charge on Bothwell's 

1 Statut. Roberti III. cap. iii. 



ENGLAND. 1 T 1 

body, but the latter delayed on various pretexts, until 
Queen Mary was able to prohibit the combat. 1 

In England, the resolute conservatism, which resists 
innovation to the last, prolonged the existence of the wager 
of battle until a period unknown in other civilized nations. 
At the close of the fourteenth century, when France was 
engaged in rendering it rapidly obsolete, Thomas, Duke of 
Gloucester, dedicated to his nephew Richard II., a treatise 
detailing elaborately the practice followed in the Marshal's 
court with respect to judicial duels. 3 Even a century later, 
legislation was obtained to prevent its avoidance in certain 
cases. The " Statute of Gloucester" (6 Ed. III. cap. 9), 
in 1333, had given to the appellant a year and a day in 
which to bring his appeal of murder — a privilege allowed 
the next of kin to put the accused on a second trial after 
an acquittal on a public indictment — which, as a private 
suit, was usually determined by the combat. In practice, this 
privilege was generally rendered unavailing by postponing 
the public prosecution until the expiration of the delay, so 
as to prevent the appeal. In 1488, however, the Act 3 
Henry VII. cap. 1, ordered that all indictments should be 
prosecuted forthwith, and that the appellee should not be 
permitted in appeals to plead his previous acquittal. 3 

With the advance of civilization and refinement, the cus- 
tom gradually declined, but it was not until the time of 
Elizabeth that it was even abolished in civil cases. In 15 71 
this was brought about, as Spelman says, " non sine magna 
jurisconsultorum perturbatione," in consequence of its em- 
ployment in the case of Low et al. vs. Paramore. To de- 
termine the title to an estate in Kent, Westminster Hall 
was forced to adjourn to Tothill Fields, and all the forms 
of a combat were literally enacted, though an accommoda- 

1 Knox's Hist, of Reform, in Scotland, pp. 332, 446-7. 

2 Spelman (Gloss, s. v. Campus) gives a Latin translation of this interest- 
ing document, from a MS. of the period. 

3 I. Barnewall & Alderson, 425. 



172 THE WAGER OP BATTLE. 

tion between the parties saved the skulls of their cham- 
pions. 1 

Yet even then it was not thought advisable to extend 
the reform to the criminal law. A curious custom, peculiar 
to the English jurisprudence, allowed a man indicted for a 
capital offence to turn " approver," by confessing the crime 
and charging or appealing any one he chose as an accom- 
plice, and this appeal was usually settled by the single 
combat. This was sufficiently frequent to require legisla- 
tion as late as the year 1599, when the Act 41 Eliz. chap. 
3 was passed to regulate the nice questions which attended 
appeals of several persons against one, or of one person 
against several. In the former case, the appellee if victori- 
ous in the first duel was acquitted ; in the. latter, the appel- 
lor was obliged to fight successively with all the appellees. 2 
Even in the seventeenth century, instances of the battle 
Ordeal between persons of high station are on record, and 
Sir Matthew Hale, writing towards the close of the century, 
feels obliged to describe with considerable minuteness the 
various niceties of the law, though he is able to speak of 
the combat as " an unusual trial at this day." 3 

In 11 74, the subject incidentally attracted attention in a 
manner not very creditable to the enlightenment of English 
legislation. When, to punish the rebellious Bostonians for 
destroying the obnoxious tea, a "Bill for the improved 
administration of justice in the Province of Massachusetts 
Bay" was passed, it originally contained a clause depriving 
the New Englanders of the appeal of murder, by which, it 
will be remembered, a man acquitted of a charge of murder 
could be again prosecuted by the next of kin, and the ques- 
tion could be determined by the wager of battle. The 
denial of this ancestral right aroused the indignation of 
the liberal party in the House of Commons, and the point 

1 Spelman. Gloss, p. 103. 

3 Hale, Pleas of the Crown, II. chap. xxix. 

3 Loc. cit. 



THE NINETEENTH CENTURY. 173 

was warmly contested. The learned and eloquent Dunning, 
afterwards Lord Askburton, one of the leaders of opposi- 
tion, defended the ancient custom in the strongest terms. 
" I rise," said he, " to support that great pillar of the con- 
stitution, the appeal for murder ; I fear there is a wish to 
establish a precedent for taking it away in England as well 
as in the colonies. It is called a remnant of barbarism and 
gothicism. The whole of our constitution, for aught I 

know, is gothic I wish, sir, that gentlemen would 

be a little more cautious, and consider that the yoke we 
are framing for the despised colonists may be tied round 
our own necks I" Even Burke was heard to lift a warning 
voice against the proposed innovation, and the obnoxious 
clause had to be struck out before the ministerial majority 
could pass the bill. 1 Something was said about reforming 
the law throughout the empire, but it was not done, and 
the beauty of the " great pillar of the constitution," the 
appeal of murder, was shown when the nineteenth century 
was disgraced by the resurrection of all the barbaric 
elements of criminal jurisprudence. In 1818, the case of 
Ashford vs. Thornton created much excitement. Ashford 
was the brother of a murdered girl, whose death, under 
circumstances of peculiar atrocity, was charged upon 
Thornton, with every appearance of probability. Acquitted 
on a jury trial, Thornton was appealed by Ashford, when 
he pleaded "Not guilty, and I am ready to defend the 
same by my body." After elaborate argument, Lord 
Ellenborough, with the unanimous assent of his brother 
justices, sustained the appellee's right to this as "the 
usual and constitutional mode of trial," expounding the 
law in almost the same terms as those which we read 
in Bracton and Beaumanoir. 3 The curious crowd was 
sorely disappointed when the appellant withdrew, and the 

1 Campbell's Lives of the Chancellors of England, VI. 112. 

2 I. Barnewall & Alderson, 457. 

15* 



1?4 THE WAGER OF BATTLE. 

chief justice was relieved from the necessity of presiding 
over a gladiatorial exhibition. A similar case occurred 
almost simultaneously in Ireland, and the next year the 
act 59 Geo. III. chap. 46, at length put an end for ever to 
this last remnant of the age of chivalry. 1 

1 Campbell, Chief Justices, III 169. 



III. 

THE ORDEAL. 



It is only in an age of high and refined mental culture 
that man, unassisted by direct inspiration, can entertain an 
adequate conception of the Supreme Being. An Omnipo- 
tence that can work out its destined ends, and yet allow 
its mortal creatures free scope to mould their own fragmen- 
tary portions of the great whole ; a Power so infinitely great 
that its goodness, mercy, and justice are compatible with 
the existence of evil in the world which it has formed, so 
that man has full liberty to obey the dictates of his baser 
passions, without being released from responsibility, and, 
at the same time, without disturbing the preordained re- 
sults of Divine wisdom and beneficence — these are not the 
ideas which prevail in the formative periods of society. 
Accordingly, in the earlier epochs of almost all races, a 
belief in a Divine Being is accompanied with the expecta- 
tion that special manifestations of power will be made on 
all occasions, and that the interposition of Providence may 
be had for the asking, whenever man, in the pride of his 
littleness, condescends to waive his own judgment, and 
undertakes to test the inscrutable ways of his Creator by 
the touchstone of his own limited reason. Thus miracles 
come to be expected as matters of every-day occurrence, 
and the laws of nature are to be suspended whenever man 
chooses to tempt his God with the promise of right and the 
threat of injustice to be committed in His name. 

To these elements of the human mind is attributable the 



176 THE ORDEAL. 

almost universal adoption of the so-called Judgment of 
God, by which men, oppressed with doubt, have essayed 
in all ages to relieve themselves from responsibility by 
calling in the assistance of Heaven. Nor, in so doing, 
have they seemed to appreciate the self-exaltation implied 
in the act itself, but, in all humility, have cast themselves 
and their sorrows at the feet of the Great Judge, making a 
merit of abnegating the reason which, however limited, has 
been bestowed to be used and not rejected. In the Car- 
lovingian Capitularies there occurs a passage, dictated 
doubtless by the spirit of genuine trust in God, which well 
expresses the pious sentiments presiding over acts of the 
grossest practical impiety. " Let doubtful cases be deter- 
mined by the judgment of God. The judges may decide 
that which they clearly know, but that which they cannot 
know shall be reserved for Divine judgment. Whom God 
hath kept for his own judgment may not be condemned by 
human means. 'Therefore judge nothing before the time, 
until the Lord come, who both will bring to light the hidden 
things of darkness, and will make manifest the counsels of 
the hearts.' m (1 Cor. iv. 5.) 

With but one exception, the earliest records of the human 
race bear witness to the existence of the superstition thus 
dignified with the forms of Christian faith, and this excep- 
tion, as might be anticipated, is furnished by China. Her 
strange civilization presents itself, in the Sacred Books 
collected by Confucius five hundred years before the Chris- 
tian era, in nearly the same form as it exists to this day, 
guided by a religion destitute of life, and consisting of a 
system of cold morality, which avoids the virtues as well 

1 "In ambiguis, Dei judicio reservetur sententia. Quod certe agnoseunt 
suo, quod nesciunt divino reservent judicio. Quoniam non potest humano 
condeinnari examine quern Deus suo judicio reservavit. Incerta namque 
non debemus judicare quoadusque veniat Dominus, qui latentia producet in 
lucem, et inluminabit abscondita tenebrarum, et manifestabit consilia cor- 
diuxn.'* — Capit. Lib. vn. cap. 259. 



CHINA — INDIA. ITT 

as the errors of more imaginative and generous faith. In 
the most revered and authoritative of the Chinese scrip- 
tures, the Chou-King, or Holy Book, of which the origin 
is lost in fabulous antiquity, we find a theo-philosophy 
recognizing a Supreme Power (Tai-Ki) or Heaven, which 
is pure reason, or the embodiment of the laws and forces 
of Nature, acting under the pressure of blind destiny. 
Trace back the Chinese belief as far as we may, we cannot 
get behind this refined and philosophical scepticism. The 
flowery kingdom starts from the night of Chaos intellec- 
tually full-grown, like Minerva, and from first to last there 
is no semblance of a creed which would admit of the direct 
practical intervention of a higher power. The fullest ad- 
mission which this prudent reserve will allow is expressed 
by the legislator Mou-Yang (about 1000 B. C.) in his in- 
structions to his judges in criminal cases : " Say not that 
Heaven is unjust — it is that man brings these evils on him- 
self. If it were not that Heaven inflicts these severe pun- 
ishments, the world would be ungoverned." 1 In the modern 
penal code of China there is accordingly no allusion to 
evidence other than that of witnesses, and even oaths are 
neither required nor admitted in judicial proceedings. 2 

When we turn, however, to the other great source ox 
Asiatic jurisprudence, whose fantastic intricacy forms so 
strange a contrast to the coeval sober realism of China, we 
find in the laws of Manu abundant proof of our general 
proposition. There is no work of the human intellect 
which offers so curious a field of speculation to the stu- 
dent of human nature ; none in which the transitions are 
so abrupt, or the contradictions so startling, between the 
most sublime doctrines of spiritual morality, and the 
grossest forms of puerile superstition ; between elevated 
precepts of universal justice, and the foulest partiality in 

1 Chou-King, Part iv. chap. 27 § 21 (after Goubil's translation). 

2 Staunton,. Penal Code of China, p. 3f>4. 



118 THE ORDEAL. 

specific cases. Its very complexity reveals a highly civi- 
lized state of society, and the customs and observances 
which it embodies are evidently not innovations on an 
established order of things, but merely a compilation of 
regulations and procedures established through previous 
ages, whose origin is lost in the trackless depths of remote 
antiquity. When, therefore, we see in the Hindoo code 
the same strange and unnatural modes of purgation which 
two thousand years later 1 greet us on the threshold of 
European civilization, adorned but not concealed by a thin 
veil of Christianized superstition, the coincidence seems 
more than accidental. That the same principle should be 
at work in each, we can account for by the general tenden- 
cies of the human mind; but that this principle should 
manifest itself under identical forms in races so far re- 
moved by time and space, offers a remarkable confirmation 
of the community of origin of the great Aryan or Indo- 
Germanic family of mankind. In the following texts, the 
principal forms of Ordeal prescribed are precisely simi- 
lar to the most popular of the mediaeval judgments of 
God:— 

"Or, according to the nature of the case, let the judge cause him 
who is under trial to take fire in his hand, or to plunge in water, or 
to touch separately the heads of his children and of his wife. 

"Whom the flame burneth not, whom the water rejects not from 
its depths, whom misfortune overtakes not speedily, his oath shall be 
received as undoubted. 

"When the Richi Vatsa was accused by his young half-brother, 
who stigmatized him as the son of a Soudra, he sware that it was false, 
and passing through fire proved the truth of his oath ; the fire, which 
attests the guilt and the innocence of all men, harmed not a hair of 
his head, for he spake the truth." 2 

1 Sir William Jones places the composition of the Laws of Manu about 
880 B. C. More recent investigators, however, have arrived at the conclu- 
sion, that they are anterior to the Christian era by at least thirteen cen- 
turies. 

2 Laws of Manu, Book viii. v. 114-116 (after Delongcharnp's translation). 



INDIA — EGYPT. 1T9 

That this was not merely a theoretical injunction is 
shown by a subsequent provision (Book VIII. v. 190), 
enjoining the ordeal on both plaintiff and defendant, even 
in certain civil cases. From the immutable character of 
Eastern institutions, we need not be surprised to see the 
custom flourishing in India to the present day, and to find 
that, in the popular estimation, the right of plaintiff or 
defendant, or the guilt or innocence of the accused is to be 
tested by his ability to carry red-hot iron, to plunge his 
hand unhurt in boiling oil, to pass through fire, to remain 
under water, \o swallow consecrated rice, to drink water 
in which an idol has been immersed, and by various other 
forms which still preserve their hold on public veneration, 1 
as many of them did within five or six centuries among 
our own forefathers. 

The numerous points of resemblance existing between 
the Indian and Egyptian civilizations, which render it pro- 
bable that the one was derived from the other, lead us also 
to presume that these superstitions were common to both 
races. Detailed evidence, such as we possess in the case 
of Hindostan, is, however, not to be expected with regard 
to Egypt, of which the literature has so utterly perished ; 
but an incident related by Herodotus shows us that the 
same belief existed in the land of the Pharaohs, in at least 
one form, and that in judicial proceedings an appeal was 
occasionally made to some deity, whose response had all the 
weight of a legal judgment, a direct interposition of the 
divinity being expected as a matter of course by all parties. 
King Amasis, whose reign immediately preceded the inva- 
sion of Cambyses, "is said to have been, even when a 

1 The purriJceh or ordeal is prescribed in the modern Hindoo law in all 
eases, civil and criminal, which cannot be settled by written or oral evidence 
or by oath. It is sometimes indicated for the plaintiff and sometimes for the 
defendant. — Gentoo Code, Halhed's Translation, chap. iii. §§ 5, 6, 9, 10; 
chap, xviii. (B. I. Company, London, 1776.) The different forms of ordeal 
will be found described in Gladwin's Translation of the Ayeen Akbery, or 
Institutes of the Sultan Akbar, Vol. -II. pp. 496 sqq. (London, 1800.) 



180 THE ORDEAL. 

private person, fond of drinking and jesting, and by no 
means inclined to serious business ; and when the means 
failed him for the indulgence of his appetites, he used to go 
about pilfering. Such persons as accused him of having 
their property, on his denjdng it, used to take him to the 
oracle of the place, and he was oftentimes convicted by the 
oracles, and oftentimes acquitted. "When, therefore, he had 
come to the throne, he acted as follows : Whatever gods 
had absolved him from the charge of theft, of their temples 
he neither took any heed, nor contributed anything toward 
their repair ; neither did he frequent them nor offer sacri- 
fices, considering them of no consequence at all, and as 
having only lying responses to give. But as many as had 
convicted him of the charge of theft, to them he paid the 
highest respect, considering them as truly gods, and deli- 
vering authentic responses." 1 

A passing allusion only is necessary to the instances, 
which will readily occur to the Biblical student, in the 
Hebrew legislation and history. The bitter water by which 
conjugal infidelity was revealed (Numbers v. 11-31), was 
an ordeal pure and simple, as were likewise the special 
cases of determining criminals by lot, such as that of Achan 
(Joshua vii. 16-18) and of Jonathan (I Samuel xiv. 41, 42), 
— precedents which were duly put forward by the monkish 
defenders of the practice, when battling against the efforts 
of the Papacy to abolish it. 

Looking to the farthest East, we find the belief in full 
force in Japan. Fire is there considered, as in India, to be 
the touchstone of innocence, 3 and other superstitions, less 
dignified, have equal currency. The goo, a paper inscribed 
with certain cabalistic characters, and rolled up into a 
bolus, when swallowed by an accused person, is believed 
to afford him no internal rest, if guilty, until he is relieved 

1 Euterpe, 174 (Cary's translation). 

3 Konigswarter, Etudes Historiques sur le Developpement de la Societe 
Humaine, p. 203. 



JAPAN — THIBET — THE GUEBRES. 181 

by confession ; and a beverage of water in which the goo 
has been soaked is attended with like happy effects. 1 The 
immobility of Japanese customs authorizes us to con- 
clude that these practices have been observed from time 
immemorial. 2 

In Pegu, the same ordeals are employed as in India, and 
Java and Malacca are equally well supplied. 3 Thibetan 
justice has a custom of its own, which is literally even- 
handed, and which, if generally used, must exert a powerful 
influence in repressing litigation. Both plaintiff and de- 
fendant thrust their arms into a caldron of boiling water 
containing a black and a white stone, victory being assigned 
to the one who succeeds in obtaining the white. 4 

Among the crowd of fantastic legends concerning Zoro- 
aster is one which, from its resemblance to the ordeal of 
fire, may be regarded as indicating a tendency to the same 
form of superstition among the Guebres. They relate that, 
when an infant, he was seized by the magicians, who pre- 
dicted his future supremacy over them, and was thrown 
upon a blazing fire. The pure element refused to perform 
its office, and was changed into a bath of rose-water for 
the wonderful child. 5 

1 Collin de Plancy, Dictionnaire Infernal, pp. 255 and 305. 

2 The preservation of the status in quo is amply provided for in Japan. 
Any functionary of the government, however exalted, who attempts an inno- 
vation, is forthwith reported to headquarters and capitally sentenced. Even 
in the supreme council, a member who proposes an alteration in the existing 
state of affairs loses his life if it is not adopted ; while, on the other hand, 
the Ziogoon or Emperor is put to death if he rejects such an alteration after 
it has passed the council, on his rejection being disapproved by an interior 
committee, consisting of his relatives. If his action be sustained by this com- 
mittee, then all who voted for the unsuccessful measure in the supreme 
council are liable to the same fate. (Perry's Japan Expedition, I. 16, 17.) 
Under these regulations, existing institutions may be regarded as almost 
imperishable. 

8 Kb'nigswarter, op. cit. p. 202. 
4 Duclos, Mem. sur les Epreuves. 
6 Collin de Plancy, op. cit. p. 555. 
16 



182 THE ORDEAL. 

To some extent, the Moslems are an exception to the 
general rule ; and this may be attributed to the doctrine of 
predestination which forms the basis of their creed, as well 
as to the elevated ideas of the Supreme Being which Ma- 
homet drew from the Bible, and which are so greatly in 
advance of all the Pagan forms of belief. There is accord- 
ingly no authority in the Koran for any description of 
ordeal ; but yet it is occasionally found among the true 
believers. Among some tribes of Arabs, for instance, the 
ordeal of red-hot iron appears in the shape of a gigantic 
spoon, to which, when duly heated, the accused applies his 
tongue, his guilt or innocence being apparent from his 
undergoing or escaping injury. 1 The tendency of the mind 
towards superstitions of this nature, in spite of the opposite 
teaching of religious dogmas, is likewise shown by a species 
of divination employed among the Turks, through which 
thieves are discovered by observing the marks on wax 
slowly melted while certain cabalistic sentences are repeated 
over it. 3 

Somewhat similar is a custom prevalent in Tahiti, where 
in cases of theft, when the priest is applied to for the dis- 
covery of the criminal, he digs a hole in the clay floor of 
the house, fills it with water, and, invoking his god, stands 
over it with a young plantain in his hand. The god to 
whom he prays is supposed to conduct the spirit of the 
thief over the water, and the priest recognizes the image by 
looking in the pool. 3 

The gross and clumsy superstitions of Africa have this 
element in common with the more refined religions of other 
races, modified only in its externals. Thus, among the 
Kalabarese, various ordeals are in use, of a character which 
reveals the rude nature of the savage. The " afia-edet-ibom" 
is administered with the curved fang of a snake, which is 

1 Konigswarter, op. cit. p. 203. 

3 Collin de Plancy, s. v. Ceroinancie. 

3 Ellis, Polynesian Researches, Vol. I. chap. 14. 



AFRICAN SUPERSTITIONS. 183 

cunningly inserted under the lid and round the ball of the 
defendant's e3'e ; if innocent, he is expected to eject it by 
rolling the eye, while, if unable to perform this feat, it is 
removed with a leopard's tooth, and he is condemned. The 
ceremony of the " afia-ibnot-idiok" is even more childish. 
A white and a black line are drawn on the skull of a chim- 
panzee, which is then held up before the accused, when an 
apparent attraction of the white line towards him indicates 
his innocence, or an inclination of the black towards him 
pronounces his guilt. The use of the ordeal-nut is more 
formidable, as it contains an active principle which is a 
deadly poison, manifesting its effects by frothing at the 
mouth, convulsions, paralysis, and speedy death. In capi- 
tal cases, or even when sickness is attributed to unfriendly 
machinations, the "abiadiong," or sorcerer, decides who 
shall undergo the trial, and as the poisonous properties of 
the nut can be eliminated by preliminary boiling, liberality 
on the part of the accused is supposed to be an unfailing 
mode of rendering the ordeal harmless. 1 

The ordeal of red water, or infusion of " sassy bark," also 
prevails throughout a wide region in Western Africa. As 
described by Dr. Winterbottom, it is administered in the 
neighborhood of Sierra Leone, by requiring the accused to 
fast for the previous twelve hours, and to swallow a small 
quantity of rice previous to the trial. The infusion is 
then taken in large quantities, as much as a gallon being 
sometimes employed ; if it produces emesia, so as to eject 
all of the rice, the proof of innocence is complete, but if it 
fails in this, or if it acts as a purgative, the accused is con- 
demned. It has narcotic properties also, a manifestation 
of which is likewise fatal to the sufferer. Among some of 
the tribes this is determined, as described by the Rev. Mr. 
Wilson, by placing small sticks on the ground at distances 
of about eighteen inches apart, among which the patient is 

1 Hutchinson's Impressions of Western Africa. London, 1858. 



184 THE ORDEAL. 

required to walk, a task rendered difficult by the vertigi- 
nous effects of the poison. Although death not infre- 
quently results from the ordeal itself, without the subse- 
quent punishment, yet the faith reposed in these trials is 
well expressed by Dr. Livingstone, who describes the 
eagerness with which they are demanded by those accused 
of witchcraft, confiding in their innocence, and believing 
that the guilty alone can suffer. When the emetic effects 
are depended on, the popular explanation is that the fetish 
enters with the draught, examines the heart of the accused, 
and, in cases of innocence, returns with the rice as evi- 
dence. 1 

In Madagascar, the ordeal is administered with the nut 
of the Tangena, the decoction of which is a deadly poison. 
In the persecution of the Malagasy Christians, in 1836, 
many of the converts were tried in this manner, and num- 
bers of them died. It was repeated with the same effect in 
the persecution of 1849. 3 

Although the classical nations of antiquity were not in 
the habit of employing ordeals as a judicial process, during 
the periods in which their laws have become known to us, 
still there is sufficient evidence that a belief in their efficacy 
existed before philosophical skepticism had reduced religion 
to a system of hollow observances. The various modes of 
divination by oracles and omens, which occupy so promi- 
nent a position in history, manifest a kindred tendency of 
mind, in demanding of the gods a continual interference in 
human affairs, at the call of any suppliant, and we are 
therefore prepared to recognize among the Greeks the 
relics of pre-existing judicial ordeals in various forms of 
solemn oaths, by which, under impressive ceremonies, 
actions were occasionally terminated, the party swearing 

1 See an elaborate " Examination of the Toxicologieal Effects of Sassy- 
Bark," by Drs. Mitchell and Hammond, Proceedings of the Biological Dep. 
of the Acad, of Nat. Sciences, Philadelphia, 1859. 

3 Ellis's Three Visits to Madagascar, chap. i. vi« 



GREECE. 185 

being obliged to take the oath on the heads of his children 
(xata t'wv 7iai!Swv), with curses on himself and his family 
(xar' siennas), or passing through fire (5ta tov Ttupo?). 1 The 
secret meaning of these rites becomes fully elucidated on 
comparing them with a passage from the Antigone of 
Sophocles, in which, the body of Polynices having been 
secretly carried off for burial against the commands of 
Creon, the guard endeavor to repel the accusation of com- 
plicity by offering to vindicate their innocence in various 
forms of ordeal, which bear a striking similarity to those 
in use throughout India, and long afterwards in mediaeval 
Europe. 

" Ready with hands to bear the red-hot iron, 
To pass through fire, and by the gods to swear, 
That we nor did the deed, nor do we know 
Who counselled it, nor who performed it." 2 

The water ordeal, which is not alluded to here, may, 
nevertheless, be considered as having its prototype in seve- 
ral fountains, which were held to possess special power in 
cases of suspected female virtue. One at Artecomium, 
mentioned by Eustathius, became turbid as soon as en- 
tered by a guilty woman. Another, near Ephesus, alluded 
to by Achilles Tatius, was even more miraculous. The 
accused swore to her innocence, and entered the water, 
bearing suspended to her neck a tablet inscribed with the 
oath. If she were innocent, the water remained stationary, 
at the depth of the midleg ; while, if she were guilty, it rose 
until the tablet floated. Somewhat similar to this was the 
Lake of Palica in Sicily, commemorated by Stephanus 
Byzantinus, where the party inscribed his oath on a tablet, 

1 Smith, Diet. Greek and Roman Antiq. s. v. Marty ria. 

3 Y.(A.iV tf' iTOl^.01 KAl (AvS'pOVS CttpilV ^ipohy 
H.SU 7TV0 flipTTUV, X.*l BiOllS OfiKdOUO 1 UP) 
TO [AYlli £pa.TX.l, [At\TZ TU1 ZuVZ'Mv'At 

to 7rpa.yfJ.dL r h\j\iJ7dLwi, ^mt' Uf^a.g , (jtkw>. 

Antigone, ver. 264—267. 

16* 



186 THE ORDEAL. 

and committed it to the water, when if the oath were true 
it floated, and if false it sank. 1 

The Roman nature, sterner and less impressible than the 
Greek, offers less evidence of weakness in this respect ; but 
traces of it are nevertheless to be found. The mediaeval 
corsnsed, or ordeal of bread, finds a prototype in a species 
of alphitomancy practised near Lavinium, where a sacred 
serpent was kept in a cave under priestly care. Women 
whose virtue was impeached offered to the animal cakes 
made by themselves, of barley and honey, and were con- 
demned or acquitted according as the cakes were eaten or 
rejected. 3 The fabled powers of the selites, or eagle-stone, 
mentioned by Dioscorides, 3 likewise remind us of the 
corsnaed, as bread in which it was placed, or food with 
which it was cooked, became a sure test for thieves, from 
their being unable to swallow it. Special instances of 
miraculous interposition to save the innocent from unjust 
condemnation may also be quoted as manifesting the same 
general tendency of belief. Such was the case of the vestal 
Tucca, accused of incest, who demonstrated her purity by 
carrying water in a sieve, 4 and that of Claudia Quinta, 
who, under a similar charge, made good her defence by 
dragging a ship against the current of the Tiber, after it 
had run aground, and had resisted all other efforts to move 
it. 5 As somewhat connected with the same ideas, we may 

1 Eustathii de Amor, Ismenii, Lib. vn., xi. ; Achill. Tatii de Amor. 
Clitoph. Lib. viii. ; Steph. Byzant. s. v. Y\ctxiK» (apud Spelnian, Gloss, p. 
324). Superstitions of this nature have obtained in all ages, and these par- 
ticular instances find their special modern counterpart in the fountain of 
Bodilis, near Landivisiau in Britanny, in which a girl when accused places 
the pin of her collar, her innocence or guilt being demonstrated by its float- 
ing or sinking. 

3 Collin de Plancy, op. cit. p. 31. 

3 Lib. v. cap. 161 (ap. Lindenbrog.). 

4 Valer. Maxim. Lib. Tin. cap. 1. 

6 "Supplicis, alma, tuae, genetrix foecunda Deorum, 
Accipe sub certa conclitione preces. 



ROME. 1ST 

allude to the imprecations accompanying the most solemn 
form of oath among the Romans, known as "Jovem 
lapidem jurare," 1 whether we take the ceremony, men- 
tioned by Festus, of casting a stone from the hand, and 
invoking Jupiter to reject in like manner the swearer if 
guilty of perjury, or that described by Livy as preceding 
the combat between the Horatii and Curiatii, in which an 
animal was knocked on the head with a stone, under a 
somewhat similar adjuration. 3 There is no trace of the 
system, however, in the Roman jurisprudence, which, with 
the exception of the use of torture at the later periods, is 
totally in opposition to its theory. Nothing can be more 
contrary to the spirit in which the ordeal is conceived than 
the maxim of the civil law — "Accusatore non probante, 
reus absolvitur." 

In turning to the Barbarian races from which the nations 
of modern Europe are descended, we are met by the ques- 
tion, which has been variously mooted, whether the ordeals 
that form so prominent a part of their jurisprudence were 
customs derived from remote Pagan antiquity, or whether 
they were inventions of the priests in the early periods of 

Casta negor ; si tu damnas, meruisse fatebor. 

Morte luam poenas, judice victa Dea. 
Sed si crimen abest,.tu nostrse pignora vitae 

Re dabis ; et castas casta sequere manus. 
Dixit, et exiguo funem conamine traxit," etc. 

Ovid. Fastorum Lib. iv. 1. 305 sqq. 

Tbis invocation to tbe goddess to absolve or condemn, and the manner in 
which the entire responsibility is thrown upon the supernal judge, give the 
whole transaction a striking resemblance to an established judicial form of 
ordeal. 

1 Quod sanctissimum jusjurandum est habitum. (Aulus Gellius, I. 21.) 
3 " Si sciens fallo, turn me Diespiter salva urbe arceque bonis ejiciat, ut 
ego hunc lapidem." (Festus, Lib. x. ; Livy, I. 24.) If we can receive as 
undoubted Livy's account of a similar ceremony performed by Hannibal to 
encourage his soldiers before the battle of Ticinus (Lib. xxi. cap. 45), we 
must conclude that the custom had obtained a very extended influence. 



188 THE ORDEAL. 

rude Christianity, to enhance their own authority, and to 
lead their reluctant flocks to peace and order under the in- 
fluence of superstition. There would seem to be no doubt 
that the former is the correct opinion, and that the religious 
ceremonies surrounding the ordeal, as we find it judicially 
employed, were introduced by the Church to Christianize 
the Pagan observances, which in this instance, as in so 
many others, it was judged impolitic, if not impossible, to 
eradicate. Yarious traces of such institutions are faintly 
discernible in the darkness from which the wild tribes 
emerge into the twilight of history ; and, as they had no 
written language, it is impossible to ask more. 1 Thus an 

1 There has been much discussion among the learned as to whether the 
barbarian dialects were written, and especially whether the Salique Law was 
reduced to writing before its translation into Latin. In the dearth of testi- 
mony, it is not easy to arrive at a positive conclusion, but the weight of 
evidence decidedly inclines to the negative of the question. Had the Sa- 
lique Law been written, it would not have been left for Charlemagne, three 
hundred years later, to put into writing the heroic poems of his race, which 
form so important a portion of the literature of a barbaric and warlike 
people. " Barbara et antiquissima carmina, quibus veterum regum acta et 
bella canebantur, et scripsisse et memoriae mandasse. Inchoavit et grani- 
maticam patriae sermonis." (Eginh. Vit. Carol. Mag. cap. xxix.) Even 
Charlemagne, with all his culture, could not write, and when, in advanced 
life, he sought to learn the art, it was too late (Ibid. cap. xxv.) — which 
shows how little the wild Saliens and Ripuarians could have thought of 
converting their language into written characters. Charlemagne's efforts 
accomplished nothing, for though in 842 the contemporary Count Nithard 
gives us the earliest specimen of written Tudesque in the celebrated oath of 
Charles-le-Chauveat Strasburg, yet, not long afterwards, Otfrid, in the preface 
to his version of the Gospels, details the difficulties of his task in a manner 
which shows that it was without precedent, and that he was himself obliged to 
adapt the language to the exigencies of writing. Indeed, he asserts positively 
that writing was not used and that no written documents existed, and he 
expresses surprise that the annals of the race should have been entrusted 
exclusively to foreign tongues. " Hujus enim linguae barbaries ut est inculta 
et indisciplinabilis, atque insueta capi regulari frasno grammaticas artis, sic 
etiam in multis dictis scriptu est propter literarum aut congeriem aut incog- 
nitam sonoritatem difficilis. Nam, interdum tria uuu, ut puto, quaerit in 
sono, priores duo consonantes, ut mihi videtur, tertium vocali sono manente. 
Interdum vero nee a nee e nee * nee u vocalium sonos praecanere potui, ibi 



THE BARBARIANS. 189 

anonymous epigram preserved in the Greek Anthology 
informs us of a singular custom existing in the Rhine-land, 
anterior to the conversion of the inhabitants, by which the 
legitimacy of children was established by exposure to an 
ordeal of the purest chance. 

©apcraTiiot KshtoL notaixa f^Tuj.ttovt 'Pjji-od, x. t. ft. 1 

"Upon the waters of the jealous Rhine 

The savage Celts their children cast, nor own 
Themselves as fathers, till the power divine 

Of the chaste river shall the truth make known. 
Scarce breathed its first faint cry, the husband tears 

Away the new-born babe, and to the wave 
Commits it on his shield, nor for it cares 

Till the wife-judging stream the infant save, 

y Graccum mihi videbatur adseribi etc. . . . Lingua enim haec agrestis habe- 
tur ; dum a propriis ne^ scriptura, nee arte aliqua ullis est temporibus expo- 
lita, quippe qui nee historias suorum antecessorum, ut multae gentes caetera?, 
coinniendant memoriae, nee eorum gesta vel vitam ornant dignitatis amore. 
Quodsi raro contigit, aliarum gentium lingua, id est, Latinorum vel Grajco- 
rum potius explanant. . . . Res mira . . . cunctahaec in alienae linguae gloriam 
transferre, et usum scripturce in projiria lingua non habere." (Otfrid. Liut- 
berto Mogunt. in Scbilt. Thesaur. Antiq. Teuton. I. 10-11.) Otfrid's par- 
tiality for his native tongue is sufficiently proved by his labors as a translator, 
and the scope of his general learning is shown by his references to Greek and 
Hebrew, and his quotations from the Latin poets, such as Virgil, Ovid, and 
Lucan. His testimony is therefore irreproachable. 

It is true that the Gothic language was employed in writing by Ulphilas in 
the fourth century, and that the Malbergian glosses in Herold's text of the 
Salique law preserve some fragmentary words of the ancient Frankish 
speech. It is also true that on doubtful authority there has been high an- 
tiquity claimed for the Scandinavian runic letters, but the balance of testi- 
mony is decidedly in favor of the opinion that the Germanic tribes were 
innocent of any rudiments of a written language. 

1 Anthol. Lib. ix. Ep. 125. This charming trait of Celtic domestic man- 
ners has been called in question by some writers, but it rests on good 
authority. Claudian evidently alludes to it as a well-known fact in the lines— 

"Galli 

Quos Rhodanus velox, Araris quos tarclior ambit, 

Et quos nascentes explorat gurgite Rhenus."' — In Rufinum, Lib. n 1. 110. 



190 THE ORDEAL. 

And prove himself the sire. All trembling lies 
The mother, racked with anguish, knowing well 

The truth, but forced to risk her cherished prize 
On the inconstant water's reckless swell." 

We learn from Cassiodorus that Theodoric, towards the 
close of the fifth century, sought to abolish the battle ordeal 
among the Ostrogoths, whence we may conclude that the 
appeal to the judgment of God was an ancestral custom 
of the race. 1 At an even earlier period, the Senchus Mor, 
or Irish law, compiled for the Brehons at the request of 
St. Patrick, contains unequivocal evidence of the existence 
of the ordeal, in a provision which grants a delay of ten 
days to a man condemned to undergo the test of hot 
water. 2 Equally convincing proof is found in the Salique 
Law, of which the earliest known text may safely be as- 
sumed to be coeval with the conversion of Clovis, as it 
contains no allusion to Christian rules* such as appear in 

1 Variarum. Lib. in. Epist. 23, 24. 

3 Senchus Mor I. 195. Compare Gloss, p. 199. — In an ancient Gloss on 
the Senchus, there is preserved a curious tradition which illustrates the 
belief in divine interposition, though manifested upon the judge and not on 
the culprit. 

" However, before the coming of Patrick there had been remarkable reve- 
lations. When the Brehons deviated from the truth of nature, there appeared 
blotches upon their cheeks ; as first of all on the right cheek of Sen Mac Aige, 
whenever he pronounced a false judgment, but they disappeared again when- 
ever he had pronounced a true judgment, &c. 

" Sencha Mac Col Cluin was not wont to pass judgment until he had pon- 
dered upon it in his breast the night before. When Faehtna, his son, had 
passed a false judgment, if in the time of fruit, all the fruit in the territory 
in which it happened fell off in one night, &c. ; if in time of milk, the cows 
refused their calves ; but if he passed a true judgment, the fruit was perfect 
on the trees; , hence he received the name of Faehtna Tulbrethach. 

" Sencha Mac Aillila never pronounced a false judgment without getting 
three permanent blotches on his face for each judgment. Fithel had the 
truth of nature, so that he pronounced no false judgment. Morann never 
pronounced a judgment without having a chajn around his neck. When he 
pronounced a false judgment, the chain tightened around his neck. If he 
pronounced a true one, it expanded down upon him." — Ibid. p. 25. 



THE BARBARIANS. 191 

revisions made somewhat later. In this text, the ordeal of 
boiling water finds its place as a judicial process in regular 
use, as fully as in the subsequent revisions of the code. 1 
In the Decree of Tassiio, Duke of the Baioarians, issued 
in ft 2, there is a reference to a pre-existing custom, named 
Stapfsaken, used in cases of disputed debt, which is de- 
nounced as a relic of Pagan rites, — "in verbis quibus ex 
vetusta consuetudine paganorum, idolatriam reperimus," — 
and which is there altered to suit the new order of ideas, 
affording an instructive example of the process to which 
I have alluded. It is evidently a kind of ordeal, as is 
manifested by the expression, " Let us stretch forth our 
right hands to the just judgment of God." 3 These proofs 
would seem amply sufficient to demonstrate the existence 
of the practice as a primitive custom of some of the Barba- 
rian races, prior to their occupation of the Roman empire. 
If more be required, it must be remembered that the records 
of those wild tribes do not extend beyond the period of 
their permanent settlement, when baptism and civilization 
were received together, so that we cannot reasonably ask 
for codes and annals at a time when each sept was rather 
a tumultuous horde of freebooters than a people living 
under a settled form of organized society. Tacitus, it is 
true, makes no mention of anything approaching nearer 
to the Judgment of God than the various forms of rude 
divination common to all superstitious savages. It is 
highly probable that to many tribes the ordeal was un- 
known, and that it had nowhere assumed the authority 
which it afterwards acquired, when the Church found in 
it a powerful instrument to enforce her authority, and to 
acquire influence over the rugged nature of her indocile 
converts. 3 Indeed, we have evidence that in some cases it 

1 Tit. liii. lvi. (First Text of Pardessus.) 

3 " Extendamus dextera nostra ad justum judicium Dei." — Decret. Tassi- 
lonis Tit. ii. § 7. 

3 Thus, in the laws of St. Stephen, King of Hungary, promulgated soon 



192 THE ORDEAL. 

was introduced, and its employment enforced, for the pur- 
pose of eradicating earlier Pagan observances ; as, for 
instance, when Bishop Geroldus, about the middle of the 
twelfth century, converted the Sclavonians of Mecklem- 
burg. 1 

Be this as it may, the custom was not long in extending 
itself throughout Europe. The laws of the Salien Franks 
we have already alluded to, and the annals of Gregory of 
Tours and of Fredegarius, the Merovingian Capitularies, 
and the various collections of Formularies, show that it 
was not merely a theoretical prescription, but an every-day 
practice among them. The Ripuarian Franks were some- 
what more cautious, and the few references to its employ- 
ment which occur in their code would seem to confine its 
application to slaves and strangers. 2 The code of the Ala- 
manni makes no allusion to any form except that of the 
"tracta spata," or judicial duel. The code of the Baioa- 
rians, in its original shape, while referring constantly to the 
combat, seems ignorant of any other mode. The supple- 
mentary Decree of Tassilo, however, affords an instance, 
quoted above, and another which seems to show that force 
was sometimes necessary to carry out the decision to em- 
ploy it. 3 The Wisigoths, who, like their kinsmen the Ostro- 
goths, immediately on their settlement adapted themselves 
in a great degree to Roman laws and customs, for nearly 
two centuries had no allusion in their body of laws to any 
form of ordeal. It was not until 693, long after the destruc- 

after his conversion, in 1016, there is no allusion to the ordeal, -while in 
those of King Coloman, issued about a century later, it is freely directed as 
a means of legal proof. 

1 "Et vetavit Conies ne Sclavi de cetero jurarent in arboribus, fontibus, 
et lapidibus ; sed offerrent criminibus pulsatos sacerdoti, ferro ac vomeribus 
examinandos." — Anon. Chron. Sclavic. cap. xxv. (Script. Rer. German. 
Septent. Lindenbrog. p. 215.) 

2 L. Ripuar. Tit. xxx. $§ 1, 2; Tit. xxxi. § 5. 

3 " Ut liberi ad eadem cogantur judicia quae Baioarii 

TJrtella dicunt." — Decret. Tassilon. Tit. ii. h 9. 



THE BARBARIANS. 193 

tion of their independence in the South of France, and but 
little prior to their overthrow in Spain by the Saracens, 
that their king, Egiza, with the sanction of the Council of 
Toledo, issued an edict commanding the employment of the 
aeneum, or ordeal of boiling water. The expressions of the 
law, however, warrant the conclusion, that this was only 
the extension of a custom previously existing, by removing 
the restrictions which had prevented its application to all 
questions, irrespective of their importance. 1 The Burgun- 
dian code refers more particularly to the duel, which was 
the favorite form of ordeal with that race, but from the 
writings of St. Agobard we may safety assume that the 
trials by hot water and by iron were in frequent use. The 
primitive Saxon jurisprudence also prefers the battle ordeal ; 
but the other kinds are met with in the codes of the Frisians 3 
and of the Thuringians. 3 The earliest Lombard law, as 
compiled by Rotharis, refers only to the wager of battle ; 
but the additions of Liutprand, made in the eighth century, 
allude to the employment of the hot-water ordeal as a 
recognized procedure. 4 In England, the Britons appear to 
have regarded the ordeal with much favor, as a treaty 
between the Welsh and the Saxons, about the year 1000, 
provides that all questions between individuals of the two 
races should be settled in this manner, in the absence of a 
special agreement between the parties. 5 The Anglo-Saxons 
seem to have been somewhat late in adopting it ; for the 

1 " Multas cognovimus querelas, et ab ingenuis multa mala pati, credentes 
in ccc. solidis quaestionem agitari. Quod nos modo per salubrem ordina- 
tionem censemus, ut quamvis parva sit actio rei facti ab aliquocriminis, eum 
per examinationem aquas ferventis a judice distringendum ordinamus." — L. 
Wisigoth. Lib. vi. Tit. i. § 3. 

3 L. Frision. Tit. iii. §§ 4, 5, 6. 

3 L. Anglior. et Werinor. Tit. xiv. 

4 L. Longobard. Lib. I. Tit. xxxiii. § 1. 

s "Non sit alia lada (i. e. purgatio) de tyhla (i. e. compellatione) nisi orda- 
lium, inter Walos et Anglos." — Senatus-Oonsult. de Monticolis Waliae cap. 
ii. 

17 



194 THE ORDEAL. 

dooms of the earlier princes refer exclusively to the refuta- 
tion of accusations by oath with compurgators, and we 
find no allusion made to the ordeal until the time of Ed- 
ward the Elder, at the commencement of the tenth century, 
that allusion, however, being of a nature to show that it 
was then a settled custom, and not an innovation. 1 Among 
the northern races it was probably indigenous, the earliest 
records of Iceland, Denmark, and Sweden exhibiting its 
vigorous existence at a period anterior to their conversion 
to Christianity ; 3 and the same may be said of the Scla- 
vonic tribes in Eastern Europe. In Bohemia, the laws of 
Brzetislas, promulgated in 1039, make no allusion to any 
other form of evidence in contested cases, 3 while it was 
likewise in force to the farthest confines of Russia.* The 
Majjars placed equal reliance on this mode of proof, as is 
shown by the statutes of King Ladislas and Coloman, 
towards the end of the eleventh century, which allude to 
various forms'of ordeal as in common use. 5 Scotland like- 
wise employed it in her jurisprudence, as developed in the 
code known as " Regiam Majestatem Scotise," attributed 
to David I., in the first half of the twelfth century. 6 Even 
the Byzantine civilization became contaminated with the 
prevailing custom, and various instances of its use are 
related by the historians of the Lower Empire, to a period 
as late as the middle of the fourteenth century. 

One cause of the general prevalence of the ordeal among 
the barbarian tribes settled in the Roman provinces may 
perhaps be traced to the custom, which prevailed univer- 
sally, of allowing all races to retain their own jurispru- 

1 Dooms of King Edward, cap. iii. ; Laws of Edward and Guthrum, cap. ix. 
3 Saxo. Grammat. Hist. Danic. Lib. v. ; Widukindi Lib. in. c. 65. — 
Gragas, Sect. vi. c. 55. 

3 Similiter de his qui homicidiis infamantur .... si negant, ignito ferro 
sive adjurata aqua examinentur. — Annalista Saxo, ann. 1039. 

4 Konigswarter, op. cit. pp. 211, 224. 

8 Batthyani Legg. Eccles. Hung. T. I. p. 439, 454. 
G For instance, Lib. iv. cap. iii. § 4. 



PURGATORIAL OATHS. 195 

clence, however socially intermingled the individuals might 
be. The confusion thus produced is well set forth by St. 
Agobard, when he remarks that frequently five men shall 
be in close companionship, each owning obedience to a 
different law. 1 He further states, that, under the Burgun- 
dian rules of procedure, no one was admitted to bear wit- 
ness against a man of different race f so that in a large 
proportion of cases there could be no legal evidence attain- 
able, and recourse was had of necessity to the judgment of 
God. No doubt a similar tendency existed generally, and 
the man who appealed to Heaven against the positive testi- 
mony of witnesses of different origin, would be very apt to 
find the court disposed to grant his request. 

During the full fervor of the belief that the Divine inter- 
position could at all times be had for the asking, almost 
any form of procedure, conducted under priestly obser- 
vances, could assume the position and influence of an 
ordeal. As early as 592, we find Gregory the Great allud- 
ing to a simple purgatorial oath, taken by a Bishop on 
the relics of St. Peter, in terms which convey evidently 
the idea that the accused, if guilty, had exposed himself to 
imminent danger, and that by performing the ceremony 
unharmed he had sufficiently proved his innocence. 3 But 
such unsubstantial refinements were not sufficient for the 
vulgar, who craved the evidence of their senses, and 
desired material proof to rebut material accusations. In 
ordinary practice, therefore, the principal modes by which 
the will of Heaven was ascertained were the ordeal of fire, 

1 "Nam plerunque eontingit ut simul eant aut sedeant quinque homines, 
et nullus eorum communem legem cum altero habeat." — Lib. adv. Legem 
Gundobadi, cap. iv. 

3 " Ex qua re oritur res valde absurda, ut si aliquis eorum in coetu populi, 
aut etiam in mercato publico commiserat aliquam pravitatem, non coar- 
guatur testibus." — Ibid. cap. vi. 

3 "Quibus (sacramentis) praestitis, magna sumus exultatione gavisi, quod 
hujuscemodi experimento innocentia ejus evidenter enituit." — Can. Habet 
hoc proprium, caus. n. quaast. 5. 



196 THE ORDEAL. 

whether administered directly, or through the agency of 
boiling water or red-hot iron ; that of cold water ; of bread 
or cheese ; of the Eucharist ; of the cross ; the lot ; and the 
touching of the body of the victim in cases of murder. 
Some of these, it will be seen, required a miraculous inter- 
position to save the accused, others to condemn; some 
depended altogether on volition, others on the purest 
chance ; while others, again, derived their power from the 
influence exerted on the mind of the patient. They were 
all accompanied with solemn religious observances, and 
the most impressive ceremonies of the Church were lavishly 
employed to give authority to the resultant decisions, and 
to impress on the minds of all the directness of the inter- 
ference which was expected from the Creator. 

The ordeal of boiling water (seneum, judicium aquae fer- 
ventis, cacabus, caldaria) is probably the oldest form in 
which the application of fire was judicially administered in 
Europe as a mode of proof. It is the one usually referred 
to in the most ancient texts of laws, and its universal 
adoption denotes a very high antiquity. It is particularly 
recommended by Hincmar as combining the elements of 
water and of fire: the one representing the deluge — the 
judgment inflicted on the wicked of old ; the other author- 
ized by the fiery doom of the future — the day of judgment. 1 
A caldron of water was brought to the boiling point, and 
the accused was obliged with his naked hand to find a 
small stone or ring thrown into it ; sometimes the latter 
portion was omitted, and the hand was simply inserted, in 
trivial cases to the wrist, in crimes of magnitude to the 
elbow, the former being termed the single, the latter the 

1 Quapropter fieri aquam ignitam ad haec duocopulata in unum indaganda 
judicia, illud videlicet quod jam per aquam factum est, et illud quod per 
ignem fiendum est .... in quibus sancti liberantur illaesi, et reprobi puni- 
entur addicti. — Hincmar de Divort. Lothar. Interrog. vi. 



ORDEAL OF BOILING WATER. 197 

triple ordeal -, 1 or, again, the stone was employed, suspended 
by a string, and the severity of the trial was regulated 
by the length of the line, a palm's breadth being counted 
as single, and the distance to the elbow as triple. 3 A good 
example of the process, in all its details, is furnished us by 
Gregory of Tours, who relates that, an Arian priest and 
a Catholic deacon disputing about their respective tenets, 
and being unable to convince each other, the latter pro- 
posed to refer the subject to the decision of the aeneum, 
and the offer was accepted. Next morning the deacon's 
enthusiasm cooled, and he mingled his matins with precau- 
tions of a less spiritual nature, by bathing his arm in oil, 
and anointing it with protective unguents. The populace 
assembled to witness the exhibition, the fire was lighted, 
the caldron boiled furiously, and a little ring thrown into 
it was whirled round like a straw in a tornado, when the 
deacon politely invited his adversary to make the trial first. 
This was declined, on the ground that precedence belonged 
to the challenger, and with no little misgiving the deacon 
proceeded to roll up his sleeve, when the Arian, observing 
the precautions that had been taken, exclaimed that he had 
been using magic arts, and that the trial would amount to 
nothing. At this critical juncture, when the honor of the 
Orthodox faith was trembling in the balance, a stranger 
stepped forward — a Catholic priest named Jacintus, from 
Ravenna — and offered to undergo the experiment. Plung- 
ing his arm into the bubbling caldron, he was two hours 
in capturing the ring, which eluded his grasp in its 
fantastic gyrations ; but finally, holding it up in triumph 
to the admiring spectators, he declared that the water felt 
cold at the bottom, with an agreeable warmth at the top. 
Fired by the example, the unhappy Arian boldly thrust 
in his arm ; but the falseness of his cause belied the confi- 

1 Dooms of King JEthelstan, iv. cap. 7. 

3 Adjuratio ferri vel aquae ferventis (Baluz. II. 655) 

17* 



198 THE ORDEAL. 

dence of its rash supporter, and in a moment the flesh was 
boiled off the bones up to the elbow. 1 

This was a volunteer experiment. As a means of judicial 
investigation, the process was surrounded with all the solem- 
nity which the most venerated rites of the Church could 
impart. Fasting and pra3^er were enjoined for three days 
previous, and the ceremony commenced with special prayers 
and adjurations, introduced for the purpose into the litany, 
and recited by the officiating priests ; mass was celebrated, 
and the accused was required to partake of the sacrament 
under the fearful adjuration, "This body and blood of our 
Lord Jesus Christ be to thee this day a manifestation!" 
This was followed by an exorcism of the water, of which 
numerous formulas are on record, varying in detail, but all 
presenting the quaintest superstition mingled with the most 
audacious presumption, as though all the powers of the 
Creator were intrusted to his servant, the whole furnishing 
a vivid picture of robust faith and self-confident ignorance. 
A single specimen will suffice. 

" creature of water, I adjure thee by the living God, by the holy 
God who in the beginning separated thee from the dry land ; I adjure 
thee by the living God who led thee from the fountain of Paradise, 
and in four rivers commanded thee to encompass the world ; I adjure 
thee by Him who in Cana of Galilee by His will changed thee to 
wine, who trod on thee with His holy feet, who gave thee the name 
Siloa ; I adjure thee by the God who in thee cleansed Naaman, the 
Syrian, of his leprosy ; — Saying, holy water, blessed water, water 
which washest the dust and sins of the world, I adjure thee by the 
living God that thou shalt show thyself pure, nor retain any false 
image, but shalt be exorcised water, to make manifest and reveal and 
bring to naught all falsehood, and to make manifest and bring to light 
all truth ; so that he who shall place his hand in thee, if his cause be 
just and true, shall receive no hurt ; but if he be perjured, let his 
hand be burned with fire, that all men may know the power of our 

1 De Gloria Martyrum Lib. i. cap. 81. — Injecta manu, protinus usque ad 
ipsa ossiura internodia caro liquefacta defluxit. 



ORDEAL OP HOT WATER. 199 

Lord Jesus Christ, who will come, with the Holy Ghost, to judge with 
fire the quick and the dead, and the world ! Amen !'" 

After the experiment had taken place, the hand was 
carefully enveloped in a cloth, sealed with the signet of the 
judge, and three days afterwards it was unwrapped, when 
the guilt or innocence of the party was announced by the 
condition of the member. 2 

The justification of this mode of procedure by its most 
able defender, Hincmar, Archbishop of Rkeims, is similar 
in spirit to this form of adjuration. King Lothair, great- 
grandson of Charlemagne, desiring to get rid of his wife, 
Teutberga, accused her of the foulest incest, and forced 
her to a confession, which she afterwards recanted, prov- 
ing her innocence by undergoing the ordeal of hot water 
by proxy. Lothair, nevertheless, married his concubine, 
Waldrada, and for ten years the whole of Europe was oc- 
cupied with the disgusting details of the quarrel, council 
after council assembling to consider the subject, and the 
thunders of Rome being freely employed. Hincmar, the 
most conspicuous ecclesiastic of his day, stood boldly forth 
in defence of the unhappy queen, and in his treatise " De 
Divortio Lotharii et Teutbergse," he was led to justify the 
use of ordeals of all kinds. The species of reasoning which 
was deemed conclusive in the ninth century may be appre- 
ciated from his arguments in favor of the aeneum, " Be- 
cause in boiling water the guilty are scalded and the inno- 
cent are unhurt, because Lot escaped unharmed from the 
fire of Sodom, and the future fire which will precede the 
terrible Judge will be harmless to the Saints, and will 
burn the wicked as in the Babylonian furnace of old." J 

1 Formulae Exorcismoruin, Baluz. II. 639 sqq. Various other formu- 
las are given hy Baluze, Spelman, Muratori, and other collectors, all mani- 
festing the same unconscious irreverence. 

3 Doom concerning hot iron and water (Laws of JEthelstan, Thorpe, I. 
226) ; Baluze, II. 644. 

3 "Quia in aqua ignita coquuntur culpabiles et innoxii liberantur incocti, 
quia de igne Sodomitico Lot Justus evasit inustus, et futurus ignis qui praei- 



200 THE ORDEAL. 

In the Life of St. Athelwold is recorded a miracle, which, 
though not judicial, yet, from its description by a contem- 
porary, affords an insight into the credulous faith which 
intrusted the most important interests to decisions of this 
nature. The holy saint, while Abbot of Abingdon, to test 
the obedience of Elfstan the cook of the Monastery, ordered 
him to extract with his hand a piece of meat from the bot- 
tom of a caldron in which the conventual dinner was boil- 
ing. Without hesitation, the monk plunged his hand into 
the seething mass and unhurt presented the desired morsel 
to his wondering superior. Faith such as this could not 
go unrewarded, and Elfstan, from his humble station, rose 
to the Episcopal seat of Winchester. 1 

This form of trial was in use among all the races in 
whose legislation the purgatio vulgaris found place. It is 
the only mode alluded to in the Salique Law, from the 
primitive text to the amended code of Charlemagne. 3 The 
same may be said of the Wisigoths, as we have already 
seen ; while the codes of the Frisians, the Anglo-Saxons, 
and the Lombards, all refer cases to its decision. 3 In Ice- 
land, it was employed from the earliest times, 4 and it con- 
tinued in vogue throughout Europe until the general 
discredit attached to this mode of judgment led to the 
gradual abandonment of the ordeal as a legal process. It 
is among the forms enumerated in the sweeping condemna- 
tion of the whole system, in 1215, by Innocent III. in the 
Fourth Council of Lateran ; but even subsequently we find 
it prescribed in certain cases by the municipal laws in force 

bit terribilem judicem, Sanctis erit innocuus et scelestos aduret, ut olim 
Babylonica fornax, quae pueros omnino non contigit." — Interrog. vi. 

1 Vit. S. Athelwoldi e. x. (Chron. Abingd. II. 259.) 

3 First Text of Pardessus, Tit. liii., lvi. ; MS. Guelferbyt. Tit. xiv , xvi. ; 
L. Emend. Tit. lv., lix. 

3 L. Frision. Tit. iii. ; L. iEthelredi iv. § 6 ; L. Lombard. Lib. i. Tit. 
xxxiii. § 1. 

4 Gragas, Sect. vi. cap. 55. 



ORDEAL OP RED-HOT IRON. 201 

throughout the whole of Northern and Southern Germany, 1 
and as late as 1282 it is specified in a charter of Gaston 
of Beam, conferring on a church the privilege of holding 
ordeals. 3 At a later date, indeed, it was sometimes admin- 
istered in a different and more serious form, the accused 
being expected to swallow the boiling water. I have 
met with no instances recorded of this, but repeated allu- 
sions to it by Rickius show that it could not have been 
unusual. 3 

The modern Hindoo variety of this ordeal consists in 
casting a piece of gold into a vessel of boiling ghee or 
sesame oil, of a specified size and depth. If the person to 
be tried can extract it between his finger and thumb, with- 
out scalding himself, he is pronounced victorious. 4 

The trial by red-hot iron {judicium ferri, juise) was in 
use from a very early period, and became one of the favorite 
modes of determining disputed questions. It was admin- 
istered in two essentially different forms. The one (vomeres 
igniti, examen pedale) consisted in laying on the ground at 
certain distances six, nine, or in some cases twelve, red-hot 
ploughshares, among which the accused walked barefooted, 
sometimes blindfolded, when it became an ordeal of pure 
chance, and sometimes compelled to press each iron with 
his naked feet. 5 The other and more usual form obliged 
the patient to carry in his hand for a certain distance, 
usually nine feet, a piece of red-hot iron, the weight of 

1 Jur. Prov. Saxon. Lib. i. Art. 39 ; Jur. Provin. Alaman. cap. xxxvii. 
§§ 15, 16. 

3 Du Cange. 3 Defens. Probaa Aquae Frigid. §§ 167, 169, &c. 

4 Ayeen Akbery, II. 498. This work was written about the year 1600 by 
Abulfazel, vizier of the Emperor Akbar. Gladwin's Translation was pub- 
lished under the auspices of the East India Company in 1800. 

s " Si titubaverit, si singulos vomeres pleno pedenon presserit, si quantu- 
lumcunque laesa fuerit, sententia proferatur." — Annal. Winton. Eccles. 
(Du Cange, s. v. Vomeres ) Six is the number of ploughshares specified in 
the celebrated trial of St. Cunigunda, wife of the Emperor St. Henry II. — 
Mag. Chron. Belgic. 



202 THE ORDEAL. 

which was determined by law and varied with the impor- 
tance of the question at issue or the magnitude of the 
alleged crime. 1 The hand was then wrapped up and sealed, 
and three days afterwards the decision was rendered in 
accordance with its condition. 2 These proceedings were 
accompanied by the same solemn observances which have 
been already described, the iron itself was duly exorcised, 
and the intervention of God was invoked in the name of 
all the manifestations of Divine clemency or wrath by the 
agency of fire — Shadrach, Meshach, and Abednego, the 
burning bush of Horeb, the destruction of Sodom, and the 
day of judgment. 3 

So, in the form ordinarily in use throughout modern 
India, the patient bathes and performs certain religious 
ceremonies. After rubbing his hands with rice bran, seven 
green Peepul leaves are placed on the extended palms and 

1 Thus, among the Anglo-Saxons, in the " simple ordeal" the iron weighed 
one pound, in the " triple ordeal" three pounds. The latter is prescribed 
for incendiaries and " morth-slayers" (secret murderers), JEthelstan, iv. § 6 ; 
— for false coining, Ethelred, iii. § 7 ; — for plotting against the king's life, 
Ethelred, v. § 30, and Cnut, Secular. § 58 — while at a later period, in the 
collection known as the Laws of Henry I., we find it extended to cases of 
theft, robbery, arson, and felonies in general, Cap. lxvi. § 9. In Spain, the 
iron had no definite weight, but was a palm and two fingers in length, with 
four feet high enough to enable the criminal to lift it conveniently (Puero 
de Baeca, ap. Villadiego, Fuero Juzgo, fol. 3l7<z). The episcopal benedic- 
tion was necessary to consecrate the iron to its judicial use. A charter of 
1082 shows that the Abbey of Fontanelle in Normandy had one of approved 
sanctity, which, through the ignorance of a monk, was applied to other pur- 
poses. The Abbot thereupon asked the Archbishop of Rouen to consecrate 
another, and before he would consent, the institution had to prove its right 
to administer the ordeal. — Du Cange, s. v., Ferrum candens. 

3 Laws of iEthelstan, iv. § 7. — Adjuratio ferri vel aquae ferventis, Baluz. 
II. 656. — Fuero de Baeca (ubi sup.) — Even in this minute particular we see 
the mysterious connection between the superstitions of Europe and those of 
India. In Malabar, the ordeal of red-hot iron was followed by a similar 
ceremony ; the hand was wrapped up with linen soaked in rice-water, sealed 
by the king, and opened three days afterward for examination. (Collin de 
Plancy, op. cit. 228.) 

3 For instance, see various forms of exorcism given by Baluze, II. 651-654. 
Also Dom Gerbert (Patrologiae, T. 138, p. 1127.) 



ORDEAL OP RED-HOT IRON. 203 

bound round seven times with raw silk. A red-hot iron of 
a certain weight is then placed on his hands, and with 
this he has to walk across seven concentric circles, each 
with a radius sixteen fingers' breadth larger than the pre- 
ceding. If this be accomplished without burning the hands, 
he gains his cause. 1 

In the earlier periods, the burning iron was reserved for 
cases of peculiar atrocity. Thus we find it prescribed by 
Charlemagne in accusations of parricide ; 2 the Council of 
Risbach in T99 directed its use in cases of sorcery and 
witchcraft ; 3 and among the Thuringians it was ordered for 
women suspected of poisoning or otherwise murdering 
their husbands, 4 a crime visited with peculiar severity in 
almost all codes. Subsequently, however, it became rather 
an aristocratic procedure, as contradistinguished from 
the water ordeals. This nevertheless was not universal, 
for both kinds were employed indiscriminately by the 
Anglo-Saxons, 5 and at a later period throughout Germany; 6 
while in the Assises de Jerusalem the hot iron is the only 
form alluded to as employed in the roturier courts ; 7 in the 
laws of Meuport, granted by Philip of Alsace in 1163 it is 
prescribed as a plebeian ordeal ; s about the same period, in 
the military laws enacted by Frederic Barbarossa during his 
second Italian expedition, it appears as a servile ordeal, 9 
and as early as 888 the Council of Mainz indicates it espe- 

1 Ayeen Akbery, II. 497. 

2 Capit. Carol. Mag. n. Ann. 803, cap. 5. 

3 Concil. Risbach. can. ix. (Hartzheim Concil. German. II. 692.) 

4 L. Anglior. et Werinor. Tit. xiv. 

5 Laws of iEthelred, iv. § 6 — where the accuser had the right to select the 
mode in which the ordeal should be administered. 

6 The Jus Provin. Alaman. (Cap. xxxvii. §§ 15, 16; Cap. clxxxvi. §§ 4, 
6, 7 ; Cap. ccclxxiv.) allows thieves and other malefactors to select the ordeal 
they prefer. The Jus Provin. Saxon. (Lib. i. Art. 39) affords them in ad- 
dition the privilege of the duel. 

7 Baisse Court, Cap. 132, 261, 279, 280, etc. 

8 Lesbroussart's Oudegherst, II. 707. 

9 Radevic. de Reb. Frid. Lib. i. cap. xxvi. 



204 THE ORDEAL. 

cially for slaves. 1 Notwithstanding this, we find it to have 
been the mode usually selected by persons of rank when 
compelled to throw themselves upon the judgment of God* 
The Empress JLicharda, wife of Charles-le-Gros, accused in 
88T of adultery with Bishop Liutward, offered to prove her 
innocence either by the judicial combat or the red-hot iron. 3 
The tragical tradition of Mary, wife of the Third Otho, 
contains a similar example, with the somewhat unusual 
variation of an accuser undergoing an ordeal to prove a 
charge. The empress, hurried away by a sudden and un- 
conquerable passion for Amula, Count of Modena, in 996, 
repeated in all its details the story of Potiphar's wife. The 
unhappy count, unceremoniously condemned to lose his 
head, asserted his innocence to his wife, and entreated her 
to clear his reputation. He was executed, and the countess, 
seeking an audience of the emperor, disproved the calumny 
by carrying unharmed the red-hot iron, when Otho, con- 
vinced of his rashness by this triumphant vindication, 
immediately repaired his injustice by. consigning his empress 
to the stake. 3 When Edward the Confessor, who entertained 
a not unreasonable dislike to his mother Emma, listened 
eagerly to the accusation of her criminal intimacy with 

1 "Si Presbyterum oecidit ... si liber est, cum xn. juret ; si autem 
servus, per xn. vomeres ferventes se expurget." Concil. Mogunt. ann. 847, 
can. xxiv. That of Tribur, however, in 895, prescribes it for men of rank, 
"fidelis libertate notabilis." — Concil. Tribur. c. xxii. 

2 Regino. ann. 887. — Annales Metenses. 

3 Gotfridi Viterbiensis Pars xvn., " De Tertio Othone Imperatore." SifF- 
ridi Epit. Lib. i. ann. 998. Ricobaldi Hist. Impp. sub Ottone III. — The 
story is not mentioned by any contemporary authorities, and Muratori has 
well exposed its improbability (Annali d'ltalia, ann. 996) ; although he 
had on a previous occasion argued in favor of its authenticity (Antiq. Ital. 
Dissert. 38) . In convicting the empress of calumny, the Countess of Modena 
appeared as an accuser, making good the charge by the ordeal ; but if we 
look upon her as simply vindicating her husband's character, the case enters 
into the ordinary course of such affairs. Indeed, among the Anglo-Saxons, 
there was a special provision by which the friends of an executed criminal 
might clear his reputation by undergoing the triple ordeal, after depositing 
pledges, to be forfeited in case of defeat. — Ethelred, iii. § 6. 



ORDEAL OF RED-HOT IRON. 205 

Alwyn, Bishop of Winchester, she was condemned to 
undergo the ordeal of the burning shares, and walking over 
them barefooted and unharmed, she established beyond per- 
adventure the falsehood of the charge. 1 Robert Curthose, 
son of William the Conqueror, while in exile during his 
youthful rebellion against his father, formed an intimacy 
with a prett}^ girl. Years afterwards, when he was Duke of 
Normandy, she presented herself before him with two likely 
youths, whom she asserted to be pledges of his former affec- 
tion. Robert was incredulous ; but the mother, carrying 
unhurt the red-hot iron, forced him to forego his doubts, 
and to acknowledge the paternity of the boys, whom he 
thenceforth adopted. 2 Indeed this was the legal form of 
proof in cases of disputed paternity established by the 
legislation of Iceland at this period, 3 and in that of Spain 
a century later. 4 Remy, Bishop of Dorchester, when ac- 
cused of treason against William the Conqueror, was cleared 

1 Rapin, Hist, d' Angleterre, 1. 123. — Giles states (note to William of Mal- 
mesbury, ann. 1043) that Richard of Devizes is the earliest authority for this 
story. 

3 Order. Vitalis Lib. x. cap. 13. 3 Gragas, Sect. vi. cap. 45. 

4 " E si alguna dixiere que prenada es dalguno, y el varon no la creyere, 
prendo fierro caliente ; e si quemada fuere, non sea creyda, mas si sana esca- 
pare del fierro, de el fijo al padre, e criel assi como fuero es." — Fuero de 
Baeca (Villadiego, Fuero Juzgo, fol. 317 a). 

An important question of the same kind was settled in the tenth century 
by a direct appeal to Heaven, through which the rights of Ugo, Marquis 
of Tuscany, were determined. His father Uberto, incurring the enmity of 
Otho the Great, fled to Pannonia, whence returning after a long exile, 
he found his wife Willa with a boy, whom he refused to acknowledge. 
After much parleying, the delicate question was thus settled : A large 
assembly, principally of ecclesiastics, was convened ; Uberto sat undistin- 
guished among the crowd ; the boy, who had never seen him, was placed in 
the centre, and prayers were offered by all present that be should be led by 
Divine instinct to his father. Either the prayers were answered, or his 
training had been good, for he singled out Uberto without hesitation, and 
rushed to his arms ; the cautious parent could indulge no longer in unworthy 
doubts, and Ugo became the most powerful prince of Italy (Pet. Damian. 
Opusc. lvii. Diss. ii. c. 3, 4). 
18 



206 THE ORDEAL. 

by the devotion of a follower, who underwent the ordeal 
of hot iron. 1 In 1143 Henry I., Archbishop of Mainz, ordered 
its employment, and administered it himself, in a contro- 
versy between the Abbey of Gerode and the Counts of 
Hirschberg. In the special charter issued to the abbey 
attesting the decision of the trial, it is recorded that the 
hand of the ecclesiastical champion was not only uninjured 
by the fiery metal, but was positively benefited by it. 2 
About the same period, Centulla IY. of Beam caused it to 
be employed in a dispute with the Bishop of Lescar concern- 
ing the fine paid for the murder of a priest, the ecclesiastic, 
as usual, being victorious. 3 But perhaps the instance of 
this ordeal most notable in its results was that by which 
Bishop Poppo, in 962, succeeded in convincing and convert- 
ing the Pagan Danes. The worthy missionary, dining with 
King Harold Blaatand, denounced, with more zeal than 
discretion, the indigenous deities as lying devils. The king 
dared him to prove his faith in his Grod, and on his assent- 
ing, caused next morning an immense piece of iron to be 
duly heated, which the undaunted Poppo grasped and car- 
ried round to the satisfaction of the royal circle, displaying 
his hand unscathed by the glowing mass. The miracle was 
sufficient, and Denmark thenceforth becomes an integral por- 
tion of Christendom. 4 The most miraculous example of this 
form of ordeal, however, was one by which the holy Suidger, 
Bishop of Munster, reversed the usual process. Suspecting 
his chamberlain of the theft of a cap, which was stoutly 
denied, he ordered the man to pick up a knife lying on the 
table, having mentally exorcised it. The cold metal burned 

1 Roger of Wendover. Ann. 1085. 

2 Quod ferrum manum portantis non solum non combussit, sed, ut videba- 
tur, postmodum saniorem reddidit. — Gudeni Cod. Diplom. Mogunt. T. I. 
No. liii. 

3 Mazure et Hatoulet, Fors de Beam, p. xxxviii. 

4 Widukindi Lib. in. cap. 65. — Sigebert. Gemblac. Ann. 966.— Ditbmari 
Chron. Lib. n. cap. viii. — Saxo. Graminat. Hist. Danic. Lib. x. 



ORDEAL OP RED-HOT IRON. 207 

the culprit's hands, as though it were red hot, and he 
forthwith confessed his guilt. 1 

No form of ordeal was more thoroughly introduced 
throughout the whole extent of Europe. From Spain to 
Constantinople, and from Scandinavia to Naples, it was 
appealed to with confidence as an unfailing mode of ascer- 
taining the will of Heaven. The term "judicium," indeed, 
was at length understood to mean an ordeal, and generally 
that of hot iron, and in its barbarized form, "juise," may 
almost always be considered to indicate this particular 
kind. In the code of the Erankish kingdoms of the East, it 
is the only mode alluded to, except the duel, and it there 
retained its legal authority long after it had become obso- 
lete elsewhere. The Assises de Jerusalem were in force in 
the Yenetian colonies until the sixteenth century, and the 
manuscript, preserved officially in the archives of Yenice, 
described by Morelli as written in 1436, retains the primi- 
tive directions for the employment of the juise. 2 Even the 
Yenetian translation, commenced in 1531, and finished in 
1536, is equally scrupulous, although an act of the Council 
of Ten, April 10, 1535, shows that these customs had fallen 
into desuetude and had been formally abolished. 3 

This ordeal even became partially naturalized among the 
Greeks. In the middle of the thirteenth century, the Empe- 
ror Theodore Lascaris demanded that Michael Paleologus, 
who afterwards wore the imperial crown, should clear him- 
self of an accusation in this manner ; but the Archbishop 
of Philadelphia, on being appealed to, pronounced that it 
was a custom of the barbarians, condemned by the canons, 
and not to be employed except by the special order of the 
emperor.* 

1 Annalista Saxo, ann. 993. 

2 This text is given by Kausler, Stuttgard, 1839, together with an older 
one compiled for the lower court of Nicosia. It is to this edition that all 
references are made. 

3 Pardessus, Us et Coutumes de la Mer, I. 268 sqq. 

4 Du Cange, s. v. Ferrum candens. 



208 THE ORDEAL. 

In Europe, even as late as 1310, in the proceedings 
against the Order of the Templars, at Mainz, Connt Frede- 
ric, the master preceptor of the Rhenish provinces, oifered 
to substantiate his denial of the accusations by carrying 
the red-hot iron. 1 Perhaps one of the latest instances 
of its actual employment was that which occurred in 
Modena in 1329, in a dispute between the German soldiers 
of Louis of Bavaria and the citizens. The Germans 
offered to settle the question by carrying a red-hot bar ; 
but when the townsfolks themselves accomplished the feat, 
and triumphantly showed that no burn had been inflicted, 
the Germans denied the proof, and asserted that magic had 
been employed. 3 

The ordeal of fire was sometimes administered directly, 
without the intervention of water or of iron ; and in this, 
its simplest form, it may be considered the origin of the 
proverbial expression, " J'en mettrois la main au feu," as 
an affirmation of positive belief, 3 showing how thoroughly 
the whole system engrained itself in the popular mind. 
The earliest legal allusion to it occurs in the code of the 
Ripuarian Franks, where it is prescribed as applicable to 
slaves and strangers, in some cases of doubt. 4 From the 

1 Et super hoe paratus esset experientiani subire et ferrum ardens portare. 
— Raynouard, Monuments relatifs a. la Condamn. des Chev. du Temple, 
p. 269. 

2 Bonif. de Morano Chron. Mutinense. — ap. Muratori Antiq. Ital. Diss. 38. 

3 Thus Rabelais, " en mon aduiz elle est pucelle, toutesfoys ie nen vould- 
roys mettre mon doigt on feu" (Pantagruel, Lib. n. chap, xv.) ; and the 
Epist. Obscur. Virorum (P. n. Epist. 1) " Quamvis M. Bernhardus diceret, 
quod vellet disputare ad ignem quod haec est opinio vestra." 

4 Quodsi servus in ignem manum miserit, et laBsam tulerit, etc. — Tit. 
xxx. Cap. i. ; also Tit. xxxi. If we may credit Cedrenus (Compend. 
Histor. Ann. 16 Anastasii), as early as the year 507, under the Emperor 
Anastasius, a Catholic bishop, who had been worsted in a theological dispute 
with an Arian, vindicated his tenets by standing in the midst of a blazing 
bonfire, and thence addressing an admiring crowd ; but Cedrenus being a 
compiler of the eleventh century, and zealous in his orthodoxy, the incident 
can hardly be thought to possess much importance except as illustrating the 
age of the writer, not that attributed to the occurrence. 



ORDEAL OF FIRE. 209 

phraseology of these passages, we may conclude that it 
was then administered by placing the hand of the accused 
in a fire. Subsequently, however, it was conducted on a 
larger and more impressive scale ; huge pyres were built, 
and the individual undergoing the trial literally walked 
through the flames. The celebrated Petrus Igneus gained 
his surname and reputation by an exploit of this kind, 
which attracted great attention in its day. Pietro di 
Pavia, Bishop of Florence, unpopular with the citizens, 
but protected by Godfrey, Duke of Tuscany, was accused 
of simony and heresy. Being acquitted by the Council of 
Rome, in 1063, and the offer of his accusers to prove his 
guilt by the ordeal of fire being refused, he endeavored to 
put down his adversaries by tyranny and oppression. 
Great disturbances resulted, and at length, in 1067, the 
monks of Yallombrosa, who had borne a leading part in 
denouncing the bishop, and who had suffered severely in 
consequence (the episcopal troops having burned the mon- 
astery of S.- Salvio and slaughtered the cenobites), resolved 
to decide the question by the ordeal, incited thereto by no 
less than three thousand enthusiastic Florentines, who 
assembled there for the purpose. Pietro Aldobrandini, a 
monk of Yallombrosa, urged by his superior, the holy S. 
Giovanni Gualberto, offered himself to undergo the trial. 
After imposing religious ceremonies, he walked slowly be- 
tween two piles of blazing wood, ten feet long, five feet wide, 
and four and a half feet high, the passage between them 
being six feet wide and covered with an inch or two of 
glowing coals. The violence of the flames agitated his 
dress and hair, but he emerged without hurt, even the hair 
on his legs being unsingeel, barelegged and barefooted 
though he was. Desiring to return through the pyre, he 
was prevented by the admiring crowd, who rushed around 
him in triumph, kissing his feet and garments, and endan- 
gering his life in their transports, until he was rescued by 
his fellow monks. A formal statement of the facts was sent 

18* 



210 THE ORDEAL. 

to Rome by the Florentines, the Papal court gave way, and 
the bishop was deposed ; while the monk who had given so 
striking a proof of his steadfast faith was marked for promo- 
tion, and eventually died Cardinal of Albano. 1 An example 
of a similar nature occurred in Milan, in 1103, when the 
Archbishop Grossolano was accused of simony by a priest 
named Liutprand, who, having no proof to sustain his 
charge, offered the ordeal of fire. All the money he could 
raise, he expended in procuring fuel, and when all was ready 
the partisans of the archbishop attacked the preparations 
and carried off the wood. The populace, deprived of the 
promised exhibition, grew turbulent, and Grossolano was 
obliged not only to assent to the trial, but to join the authori- 
ties in providing the necessary materials. In the Piazza di 
S. Ambrosio two piles were accordingly built, each ten cubits 
long, by four cubits in height and width, with a gangway 
between them of a cubit and a half. As the undaunted 
priest entered the -blazing mass, the flames divided before 
him, and closed as he passed, allowing him to emerge in 
safety — although with two slight injuries, one a burn on 
the hand, received while sprinkling the fire before entering, 
the other on the foot, which he attributed to a kick from a 
horse in the crowd that awaited his exit. The evidence 
was accepted as conclusive by the people, and Grossolano 
was obliged to retire to Rome. Pascal II., however, re- 
ceived him graciously, and the Milanese suffragans disap- 
proved of the summary conviction of their metropolitan, 
to which they were probably all equally liable. The inju- 
ries received by Liutprand were exaggerated, a tumult was 
excited in Milan, the priest was forced to seek safety in 
flight, and Grossolano was restored. 3 

But the experiment was not always so successful for the 
rash enthusiast. In 1098, during the first crusade, after 

1 Vit. S. Johannis Gualberti c. lx -Ixiv. 

2 Landulph. Jim. Hist. Mediol. cap. ix , x., xi. (Rer. Ital. Script. T. V.)~ 
Muratori, Annal. Ann. 1103. 



ORDEAL OP FIRE. 211 

the capture of Antioch, when the Christians were in turn 
besieged in that city, and, sorely pressed and famine-struck, 
were well-nigh reduced to despair, an ignorant peasant named 
Peter Bartholomew, a follower of Raymond of Toulouse, 
announced a series of visions in which St. Andrew and the 
Saviour had revealed to him that the lance which pierced 
the side of Christ lay hidden in the church of St. Peter. 
After several men had dug in the spot indicated, from 
morning until night, without success, Peter leaped into the 
trench, and by a few well-directed strokes of his mattock 
exhumed the priceless relic, which he presented to Count 
Raymond. Cheered by this, and by various other mani- 
festations of Divine assistance, the Christians gained heart, 
and defeated the Infidels with immense slaughter. Peter 
became a man of mark, and had fresh visions on all import- 
ant conjunctures. Amid the jealousies and dissensions 
which raged among the Prankish chiefs, the possession of 
the holy lance vastly increased Raymond's importance, and 
rival princes were found to assert that it was merely a rusty 
Arab weapon, hidden for the occasion, and wholly unde- 
serving the veneration of which it was the object. At 
length, after some months, during the leisure of the siege 
of Arenas, the principal ecclesiastics in the camp investi- 
gated the matter, and Peter, to silence the doubts ex- 
pressed as to his veracity, offered to vindicate the identity 
of the relic by the fiery ordeal. He was taken at his word, 
and after three days allowed for fasting and prayer, a pile 
of dry olive-branches was made, fourteen feet long and four 
feet high, with a passage-way one foot wide. In the pre- 
sence of forty thousand men all eagerly awaiting the result, 
Peter, bearing the object in dispute, and clothed only in a 
tunic, boldly rushed through the flames, amid the anxious 
prayers and adjurations of the multitude. As the chroni- 
clers lean to the side of the Neapolitan Princes or of the 
Count of Toulouse, so do their accounts of the event differ ; 
the former asserting that Peter sustained mortal injury in 



212 THE ORDEAL. 

the fire ; the latter assuring us that he emerged safely, with 
but one or two slight burns, and that, the crowd enthusias- 
tically pressing round him in triumph, he was thrown down, 
trampled on, and injured so severely that he died in a few 
days, asseverating with his latest breath the truth of his 
revelations. Raymond persisted in upholding the sanctity 
of his relic, but it was subsequently lost. 1 

Even after the efforts of Innocent III. to abolish the 
ordeal, and while the canons of the Council of Lateran were 
still fresh, St. Francis of Assisi, in 1219, offered himself to the 
flames for the propagation of the faith. In his missionary 
trip to the East, finding the Sultan deaf to his proselyting 
eloquence, he proposed to test the truth of their respective 
religions by entering a blazing pile in company with some 
imams, who naturally declined the perilous experiment. 
Nothing daunted, the enthusiastic Saint then said that he 
would traverse the flames alone if the Sultan would bind 
himself, in the event of a triumphant result, to embrace the 
Christian religion and to force his subjects to follow the 
example. The Turk, more wary than the Dane whom 
Poppo converted, declined the proposition, and St. Francis 
returned from his useless voyage unharmed. 2 The honors 

1 Fuleher. Carnot. cap. x. ; Radulf. Cadoinensis cap. c, ci., cii., cviii. ; 
Raimond. de Agiles (Bongars, I. 150-168). The latter was chaplain of the 
Count of Toulouse, and a firm asserter of the authenticity of the lance. He 
relates with pride, that on its discovery he threw himself into the trench and 
kissed it while the point only had as yet been uncovered. He likewise 
officiated at the ordeal, and delivered the adjuration as Peter entered the 
flames : " Si Deus omnipotens huic homini loquutus est facie ad faciem, et 
beatus Andreas Lanceam Dominicam ostendit ei, cum ipse vigilaret, transeat 
iste illsesus per ignem. Sin autem aliter est, et mendacium est, comburatur 
iste cum lancea quam portabit in manibus suis." Raoul de Caen, on the 
other hand, in 1107 became secretary to the chivalrous Tancred, and thus 
obtained his information from the opposite party. He is very decided in 
his animadversions on the discoverers. Fuleher de Chartres was chaplain 
to Baldwin I. of Jerusalem, and seems impartial, though sceptical. 

2 Raynaldi Annal. Eccles. ann. 1219, c. 56. — In this, St. Francis en- 
deavored unsuccessfully to emulate the glorious achievement of St. Boniface 
the Apostle of Russia, who converted the King of Russia and his court by 






ORDEAL OF FIRE. 213 

which the unbelievers rendered to their self-sacrificing guest 
may perhaps be explained by the reverence with which they 
are accustomed to regard madmen. 

A still more remarkable attempt at this kind of ordeal 
occurred at a much later period, when the whole system had 
long become obsolete, and though not carried into execution, 
it is worthy of passing notice, as it may be said to have 
produced results affecting the destinies of civilization to 
our own day. When, at the close of the fifteenth century, 
Savonarola, the precursor of the Reformation, was com- 
mencing at Florence the career which Luther afterwards 
accomplished, and was gradually throwing off all reverence 
for the infamous Borgia, who then occupied the chair of St. 
Peter, he challenged any of his adversaries to undergo with 
him the ordeal of fire, to test the truth of his propositions 
that the Church needed a thorough reformation, and that 
the excommunication pronounced against him by the Pope 
was null and void. In 1497, the Franciscan Francesco di 
Puglia, an ardent opponent, accepted the challenge, but left 
Florence before the preliminaries were arranged. On his 
return, in the following year, the affair was again taken up ; 
but the principals readily found excuses to devolve the dan- 
gerous office on enthusiastic followers. Giuliano Rondi- 
nelli, another Franciscan, agreed to replace his companion, 
declaring that he expected to be burned alive ; while on the 
other side the ardor was so great that two hundred and 
thirty-eight Dominicans and numberless laymen subscribed 
a request to be permitted to vindicate their cause by tri- 
umphantly undergoing the trial unhurt, in place of Do- 
menico da Peschia, who had been selected as Savonarola's 
champion. At length, after many preliminaries, the Signiory 
of Florence assigned the Tth of April, 1498, for the experi- 
ment. An immense platform was erected, on which a huge 
pile of wood was built, charged with gunpowder and other 

means of a similar bargain and ordeal — at least according to the current 
martyrologie? (Martyrol. Roman. 19 Jun), on the authority of St. Peter Da- 
mian (Vit. S. Rouiuald c. 27). 



214 THE ORDEAL. 

combustibles, and traversed by a narrow passage, through 
which the champions were to walk. All Florence assembled 
to see the show ; but, when everything was ready, quibbles 
arose about permitting the champions to carry crucifixes, 
and to have the sacrament with them, about the nature of 
their garments, and other like details, in disputing over 
which the day wore away, and at vespers the assemblage 
broke up without result. Each party, of course, accused 
the other of having raised the difficulties in order to escape 
the ordeal ; and the people, enraged at being cheated of the 
promised exhibition, and determined to have compensation 
for it, easily gave credit to the assertions of the Franciscans, 
who stimulated their ardor by affirming that Savonarola 
had endeavored to commit the sacrilege of burning the 
sacrament. In two days they thus succeeded in raising a 
tumult, during which Savonarola's convent of San Marco 
was attacked. Notwithstanding a gallant resistance by the 
friars, he was taken prisoner, and, after undergoing frightful 
tortures, was hanged and burned. Thus was repressed a 
movement which at one time promised to regenerate Italy, 
and to restore purity to a corrupted Church. The mind 
loses itself in conjecturing what would have been the result 
if the- career of Savonarola had not thus been brought to 
an untimely end; though, while fully acknowledging his 
genius and fervor, we must admit that he was not of the 
stuff of which the leaders of mankind are fashioned. 1 

It will be observed that the ordeal of fire was principally 

1 I have principally followed a very curious and characteristic account of 
the " Sperimento del Fuoco," contained in a Life of Savonarola by the P. 
Pacifico Burlainacchi, given by Mansi in his edition of the Miscellanea of 
Baluze, I. 530 sqq. Burlamacchi, as a friend and ardent follower of the 
reformer, of course throws all the blame of defeating the ordeal on the 
quibbles raised by the Franciscans, while the Diary of Burchard, master of 
ceremonies of the Papal Chapel to Borgia (Diarium Curiae Romanae, ann. 
1498), roundly asserts the contrary. Guicciardini (Lib. in. cap. vi.) briefly 
states the facts, without venturing an opinion, except that the result utterly 
destroyed the credit of Savonarola, and enabled his enemies to make short 
work with him. 



ORDEAL OF FIRE. 215 

affected by ecclesiastics in church affairs, perhaps because 
it was of a nature to produce a powerful impression on the 
spectators, while at the same time it could no doubt in many 
instances be so managed as to secure the desired results 
by those who controlled the details. In like manner, it was 
occasionally employed on inanimate matter to decide points 
of faith or polity. Thus, in the question which excited 
great commotions in Spain in 1077, as to the substitution of 
the Roman for the Gothic or Mozarabic rite, after a judicial 
combat had been fought and determined in favor of the 
national ritual, the partisans of the Roman offices continued 
to urge their cause, and the ordeal of fire was appealed to. 
A missal of each kind was committed to the flames, and, to 
the great joy of all patriotic Castilians, the Gothic offices 
were unconsumed. 1 A somewhat similar instance occurred 
in Constantinople, as late as the close of the thirteenth 
century, when Andronicus II., on his accession, found 
the city torn into factions relative to the patriarchate, 
arising from the expulsion of Arsenius, a former patriarch. 
All attempts to soothe the dissensions proving vain, at 
length both parties agreed to write out their respective 
statements and arguments, and, committing both books to 
the flames, to abide by the result, each side hoping that its 
manuscript would be preserved by the special interposition 
of Heaven. The ceremony was conducted with imposing 
state, and, to the general surprise, both books were reduced 
to ashes. Singularly enough, all parties united in the 
sensible conclusion that God had thereby commanded them 
to forget their differences, and to live in peace. 2 

The genuineness of relics was often tested in this manner 

1 Ferreras, Hist. Gen. d'Espagne, trad. d'Hermilly, III. 245. The au- 
thenticity of this miracle has somewhat exercised orthodox writers, and 
Mabillon states that the earliest authority for it is Roderic, Archbishop of 
Toledo, who flourished in the middle of the thirteenth century (Prooem. ad 
Vit. Greg. VII. No. 10). If this be so, it only shows to how late a period 
the superstition extended. 

2 Niceph. Gregor. Lib. vi. 



216 THE ORDEAL. 

by exposing them to the action of fire. When, in 1065, the 
pious M gel win, Bishop of Durham, miraculously discovered 
the relics of the holy martyr King Oswyn, he gave the hair 
to Judith, wife of Tosti, Earl of Northumberland, and she 
with all reverence placed it on a raging fire, whence it was 
withdrawn, not only uninjured, but marvellously increased 
in lustre, to the great edification of all beholders. 1 Guibert 
de Nogent likewise relates that, when his native town be- 
came honored with the possession of an arm of St. Arnoul, 
the inhabitants, at first doubting the genuineness of the 
precious relic, cast it into the flames ; when it vindicated 
its sanctity, not only by being fire-proof, but also by leaping 
briskly away from the coals, testimony which was held to 
be incontrovertible. 2 

The cold-water ordeal (judicium aquae frigidse) differed 
from most of its congeners in requiring a miracle to convict 
the accused, as in the natural order of things he escaped. 
The preliminary solemnities, fasting, prayer, and religious 
rites, were similar to those already described ; the reservoir 
of water, or pond, was then exorcised with formulas exhi- 
biting the same combination of faith and impiety, and the 
accused, bound with cords, was lowered into it with a rope, 
to prevent fraud if guilty, and to save him from drowning 
if innocent ; 3 the length of rope allowed under water being 
an ell and a half, according to the Anglo-Saxon rule.* 

The basis of this ordeal was the superstitious belief that 
the pure element would not receive into its bosom any one 
stained with the crime of a false oath, a belief which, as we 

1 Matthew of Westminster, Ann. 1065. 

2 Guibert. Noviogent. de Vita sua Lib. ill. cap. xxi. 

3 Ne aut aliquem possit fraudem in judicio facere, aut si aqua ilium velut 
innoxium reciperit, ne in aqua pericletetur, ad tempus valeat retrahi. — 
Hincmar. de Divort. Lothar. Interrog. vi. It may readily be supposed that 
a skilful management of the rope might easily produce the appearance of 
floating, when a conviction was desired by the priestly operators. 

4 Et si judicium aque frigide sit, tunc immergatur una ulna et dimidia 
in fune. — L. iEthelstani, I. cap. xxiii. 



ORDEAL OP COLD WATER. 21*7 

have seen, was entertained in primeval India, and which 
bears considerable resemblance to the kindred superstition 
of old, that the earth would eject the corpse of a criminal, 
and not allow it to remain quietly interred. The ecclesi- 
astical doctrines on the subject are clearly enunciated by 
Hincmar : " He who seeks to conceal the truth by a lie will 
not sink in the waters over which the voice of the Lord 
hath thundered ; for the pure nature of water recognizes as 
impure, and rejects as incompatible, human nature which, 
released from falsehood by the waters of baptism, becomes 
again infected with untruth." 1 The baptism in the Jordan, 
the passage of the Red Sea, and the crowning judgment of 
the Deluge, were freely adduced in support of this theory, 
though these latter were in direct contradiction to it, and 
the most figurative language was boldly employed to give 
some show of probability to the results expected. Thus, in 
St. Dunstan's elaborate formula, the prayer offered over the 
water metaphorically adjures the Supreme Being — "Let not 
the water receive the body of him who, released from the 
weight of goodness, is upborne by the wind of iniquity \ m 
As practised in modern India, however, the trial is rather 
one of endurance. The patient stands in water up to his 
middle, facing the East. He dives under, while simulta- 
neously an arrow of reed without a head is shot from a bow, 
106 fingers' breadth in length, and if he can remain under 
water until the arrow is picked, up and brought back, he 
gains his cause. 3 

1 Qui veritatem mendacio cupit obtegere, in aquis, super quas vox Do- 
mini Dei majestatis intonuit, non potest mergi, quia pura natura aquae natu- 
ram huruanam per aquam baptismatis ab omni mendacii figmento purgatam, 
iterum mendacio infectam, non recognoscit pm*am, et ideo earn non recipit, 
sed rejicit ut alienam. — De Divort. Lothar. Interrog. vi. 

2 Nee patiantur recipere corpus, quod ab onere bonitatis evacuatum, 
ventus iniquitatis allevavit ac inane constituit. — Ordo S. Dunstani Doro- 
bern. (Baluze, II. 650.) 

3 Ayeen Akbery, II. 497. The use of this ordeal was confined to the 
Vaisya or caste of husbandmen and merchants. 

19 



218 THE ORDEAL. 

Although the use of this form of ordeal prevailed wher- 
ever the judgment of God was appealed to, and although it 
enjoyed a later existence than any of its kindred practices, 
it was the last to make its appearance in Europe. There 
seems to be good reason for attributing its introduction as 
a Christian mode of trial to Pope Eugenius II., who occu- 
pied the pontifical throne from 824 to 827, although some 
critics have denied to it this paternity, on what would seem 
to be insufficient grounds. Baluze gives a formula for con- 
ducting it which is thought to be of the ninth century, and 
which expressly states that Eugenius invented it at the 
request of Louis-le-Debonnaire, as a means of repressing 
the prevalent vice of perjury ; and another manuscript to 
which Mabillon attributes the same date makes a similar 
assertion. 1 All this derives additional probability from 
the fact that the cold-water ordeal is not alluded to in any 
of the codes or laws anterior to the ninth centurj^ while it 
is continually referred to in subsequent ones ; and another 
evidence of weight is afforded by St. Agobard, Archbishop 
of Lyons, who, in his celebrated treatise against the judg- 
ment of God, written a few years before the accession of 
Eugenius, while enumerating and describing the various 
modes in use, says nothing about that of .cold water.* The 

1 Hoc judicium autem, petente Domno Hludovico Imperatore, constituit 

beatus Eugenius, ne perjuri super reliquias sanctorum perdant suas 

animas in malum consentientes (Baluze, II. 646). — Hoc autem judicium 
creavit omnipotens Deus, et verum est ; et per Domnum Eugenium Apostoli- 
cum inventum est (Mabillon, Analecta, pp. 161, 162, ap. Cangium.). — The 
same assertion is made in several other rituals which are given at length 
by Muratori (Antiq. Ital. Dissert. 38) ; and by Juretus (Observat. ad Ivon. 
Epist. 74). Some ancient MSS. also attribute it to Leo III., a quarter of a 
century earlier, stating that when in 799 the Romans revolted against him, 
he fled to Charlemagne, and that, on the Emperor's bringing him back to 
Rome, this form of ordeal was introduced to try the authors of the disturb- 
ance. (Muratori, loc. cit.) 

2 Non oportet . . . suspicari quod omnipotens Deus occulta hominum in 
praasenti vita per aquam calidam aut ferrum revelari velit; quanto minus per 
crudelia certamina? — (Lib. adv. L. Gundobadi cap. ix.) And again, in the 



ORDEAL OF COLD WATER. 219 

only arguments alleged in favor of an earlier date are cer- 
tain passages in Gregory of Tours, describing miracles in 
which saintly personages condemned to be drowned floated 
triumphantly ashore — cases which have evidently nothing 
to do with the question, as they were interpositions of 
Providence to save, not to condemn, and were inflictions 
of punishment, not legal investigations. 1 

The new process had a hard struggle for existence. But 
a few years after its introduction, it was condemned by 
Louis-le-Debonnaire at the Council of Worms, in 829 ; its 
use was strictly prohibited, and the "missi dominici" were 
instructed to see that the order was carried into effect, 
regulations which were repeated by the Emperor Lothair, 
son of Louis. 3 Notwithstanding this, it seemed to adapt 
itself to popular prejudices, and the interdiction was of 
little avail ; Hincmar, indeed, dismissing it with the remark 
that the prohibition was not confirmed by the canons of 
authoritative councils. 3 The trial by cold water spread 
throughout Europe, and among all the Continental races 
it was placed on an equal footing with the other forms of 
ordeal. Among the Anglo-Saxons, indeed, its employment 
has been called in question by some modern writers ; but 
the Dooms of JEthelstan, and the formula of St. Dunstan 

Liber contra Judicium Dei, cap. i. : " Mitte unum de tuis, qui congrediatur 
mecum singulari certamine, ut probet me reum tibi esse, si oceiderit ; aut 
certe, jube ferrum vel aquas calefieri, quas manibus illaesus attrectem.; aut 
constitue cruces. ad quas stans immobilis perseverem." 

1 Gregor. Turon. Miracul. Lib. I. c. 69, 70. The Epistle given in Gratian 
(C Mennam caus. 2. q. 5) as written by St. Gregory to Queen Brunhilda, 
scarcely needs a reference, its allusions to the ordeal having long since been 
restored to their true author, Alexander II. (Epist. 122). 

2 Ut examen aquae frigidae, quae hactenus fiebat, a missis nostris omnibus 
modis interdicatur, ut non ulterius fiat. — Capit. Wormat. Ann. 829, Tit. n. 
cap 12; — L. Longobard. Lib. n. Tit. lv. § 31. 

3 Nee praetereundum quia legimus in capitulis Augustorum fuisse vetitum 
frigidae aquae judicium ; sed non in illis synodalibus quae de certis accepimus 
synodis. — De Divort. Lothar. Interrog. vi. 



220 THE ORDEAL. 

of Canterbury, already quoted, sufficiently manifest its 
existence in England before the Conquest. 

The ordeals of both hot and cold water were stigmatized 
as plebeian from an early period, as the red-hot iron and the 
duel were patrician. Thus Hincmar, in the ninth century, 
alludes to the former as applicable to persons of servile 
condition j 1 a constitution of the Emperor St. Henry II., 
about A. D. 1000, in the Lombard law, has a similar bear- 
ing ; a an Alsatian document in the eleventh, 3 and the laws 
of Scotland in the twelfth century, assume the same po- 
sition ; 4 and Glanville at the end of the twelfth century 
expressly asserts it. 5 This, however, was an innovation ; 
for in the earliest codes there is no such distinction, a pro- 
vision in the Salique law even prescribing the aeneum, or 
hot-water ordeal, for the Antrustions, who constituted the 
most favored class in the state. 6 JSTor even in later times 
Was the rule by any means absolute. In the tenth century, 
Sanche, Duke of Gascony, desirous of founding the monas- 
tery of Saint Sever, claimed some land which was necessary 
for the purpose, and being resisted by the possessor, the 
title was decided by reference to the cold-water ordeal. 7 
In 1027, Guelf II., Count of Altorf, ancestor of the great 

1 Ut si prsefati sui homines quia non liberae conditionis sunt, aut cum 
aqua frigida, aut cum aqua calida, inde ad judicium Dei exirent, quid inde 
Deus ostenderet mihi sufficeret. — Opusc. adv. Hincmar. Laudun. cap. xliii. 

2 Si quis . . . accusatus negare voluerit, aut per duellum si liber est ; si 
vero servus, per judicium ferventis aquae defendat se. — L. Longobard. Lib. 
I. Tit. ix. § 39. 

3 Et si . . . ipse innocentiae suae expurgationem appellaverit, liber vel 
personatus serviens, si infra patriam est, post septem dierum inducias cum 
totidem suae comparitatis testibus ; plebejus autem et minoris testimonii 
rusticus, aquae frigidae se expurget judicio. — Recess. Convent. Alsat. Anno 
1051, § 6. (Goldast. Constit. Imp. II. 48.) 

4 Regiam Majestatem Lib. IV. cap. iii. § 4. 

6 In tali autem causa tenetur se purgare is qui accusatur per dei judicium 
.... scilicet per ferrum calidum si fuerit homo liber, per aquam si fuerit 
rusticus. — De Legg. Angliae Lib. xiv. cap. i. 

G Text. Herold. Tit. lxxvi. 

7 Mazure et Hatoulet, Fors de Beam, p. xxxi. 



ORDEAL OF COLD WATER. 221 

houses of Guelf in Italy and England, having taken part 
in the revolt of Conrad the Younger and Ernest of Suabia, 
was forced by the Emperor Conrad the Salique to prove his 
innocence in this manner. 1 This may have been, perhaps, 
intended rather as an humiliation than as a judicial proceed- 
ing, for Guelf had been guilty of great excesses in the con- 
duct of the rebellion ; but about the same period Othlonus 
relates an incident in which a man of noble birth accused 
of theft submitted himself to the cold water ordeal as a 
matter of course ; 3 and we find, nearly two centuries later, 
when all the vulgar ordeals were falling into disuse, that the 
water ordeal was established among the nobles of Southern 
Germany, as the mode of deciding doubtful claims on fiefs. 3 

In 1083, during the deadly struggle between the Empire 
and the Papacy, as personified in Henry IT. and Hildebrand, 
the imperialists related with great delight that some of the 
leading prelates of the Papal court submitted the cause of 
their chief to this ordeal. After a three days' fast, and 
proper benediction of the water, they placed in it a boy to 
represent the Emperor, when to their horror he sank like a 
stone. On referring the result to Hildebrand, he ordered 
a repetition of the experiment, which was attended with the 
same result. Then, throwing him in as a representative of 
the Pope, he obstinately floated during two trials, in spite 
of all efforts to force him under the surface, and an oath 
was exacted from them to maintain inviolable secrecy as to 
the unexpected result. 4 

Perhaps the most extensive instance of the application 
of this form of ordeal was that proposed when the sacred 
vessels were stolen from the cathedral church of Laon, as 
related by a contemporary in a MS. of Laon quoted by 

1 Conrad. Ursperg. sub Lothar. Saxon. 

2 Quidam illustris vir. — Othlon. de Mirac. quod nuper aceidit etc. (Pa- 
trol. T. 140, p. 242.) 

3 Juris Feud. Alaman. cap. Ixxvii. § 2. 

4 MS Brit. Mus. inserted by Pertz in Hugo. Flaviniae. Lib. II. 

19* 



222 THE ORDEAL. 

Juretus. 1 At a council convened on the subject, Master 
Anselm, the most learned doctor of the diocese, suggested 
that, in imitation of the plan adopted by Joshua at Jericho, 
a young child should be taken from each parish of the 
town and tried by immersion in consecrated water. From 
each house of the parish which should be found guilty, 
another child should be chosen to undergo the same pro- 
cess. When the house of the criminal should thus be dis- 
covered, all its inmates should be submitted to the ordeal, 
and the author of the sacrilege would thus be revealed. 
This plan would have been adopted had not the frightened 
inhabitants rushed to the Bishop and insisted that the 
experiment should commence with those whose access to 
the church gave them the best opportunity to perpetrate 
the theft. Six of these latter were accordingly selected, 
among whom was Anselm himself. While in prison await- 
ing his trial, he caused himself to be bound hand and foot 
and placed in a tub full of water, in which he sank satisfac- 
torily to the bottom, and assured himself that he should 
escape. On the day of trial, in the presence of an immense 
crowd, in the cathedral which was chosen as the place of 
judgment, the first prisoner sank, the second floated, the 
third sank, the fourth floated, the fifth sank, and Anselm, 
who was the sixth, notwithstanding his previous experi- 
ment, obstinately floated, and was condemned with his ac- 
complices, in spite of his earnest protestations of innocence. 
Although the cold-water ordeal disappears from the 
statute-book in civil and in ordinary criminal actions at 
the same time that the other similar modes of purgation 
were abandoned, there is one class of cases in which it 
maintained its hold upon the popular faith to a much later 
period. These were the accusations of sorcery and witch- 
craft which form so strange and prominent a feature of me- 
diaeval society, and its use for this purpose may apparently 

1 Observat. in Ivon. Carnot. Epist. 74. 



ORDEAL OP COLD WATER. 223 

be traced to various causes. For such crimes, drowning 
was the punishment inflicted by the customs of the Franks, 
as soon as they had lost the respect for individual liberty 
of action which excluded personal punishments from their 
original code ; J and in addition to the general belief that 

1 Lodharius . . . Gerbergam, more maleficonvm, in Arari mergi prse- 
cepit. — Nithardi Hist. Lib. i. Ann. 834. 

The Salique law merely inflicts fines in cases of witchcraft, even when the 
offender had, according to a widely spread superstition of the times, eaten 
the victim bodily (L. Emendat. cap. xxi. § 3 ; cap. lxvii. § 3). So also the 
L. Ripuarior. (Tit. lxxxiii.). Charlemagne allowed suspected persons to be 
tortured for confession, provided the process was not carried to the point of 
death, and after conviction they were to be imprisoned until amendment 
(Capit. II. Ann. 805, § xxv.). The legislation of other races was very various 
in this respect. The Ostrogoths visited all such practices with death (Cod. 
Theoderici cap. cvni.), relaxing somewhat on the laws of Constantine, who 
sought to extirpate them with fire and torments (Const. 3, 6, 7, C. De Male- 
ficis ix. ]8). The Wisigoths more humanely contented themselves with 
stripes, shaving the head, and exposure (L. Wisigoth. Lib. VI. Tit. ii. cap. 3). 
The Lombard law (Lib. n. Tit. xxxviii. §2) ordered them to be sold as slaves 
beyond the boundaries of the province, and the earliest legislator, King 
Rotharis, denounced severe penalties against those who put women to death 
under the absurd belief that they could eat living men — " Quod Christianis 
mentibus nullatenus est credendum, nee possibile est, ut hominem mulier 
vivum intrinsecus possit comedere" (L. Longobard. Lib. i. Tit. xi. § 9). 
The Pagan Saxons entertained a similar superstition, for which they were in 
the habit of burning witches and sorcerers, and even of eating them in turn, 
as we learn from the civilizing and Christianizing capitulary of Charlemagne : 
"Si quis, a diabolo deceptus, crediderit, secundum morem paganorum, virum 
aliquem aut feminam strigam esse et homines comedere, et propter hoc ipsam 
incenderit, vel carnem ejus ad comedendum dederit, vel ipsam comederit, 
capitis sententia punietur etc." (Capit. de Partibus Saxoniaa, Ann. 789, 
§ vi.). The Anglo-Saxons merely banished the witch who would not reform, 
with the penalty of death for disobedience (Laws of Edward and Guthrum, 
Tit. xi. ; Ethelred, vi. § 7 ; Cnut. Secular, cap. iv.) ; unless the death of a 
victim had been compassed, when the offender was executed (iEthelstan, i. 
§6), or delivered to the kindred to be punished at their pleasure (Henrici I. 
Tit. lxxi. § ]). The primitive law of Scotland, as given by Boetius, was 
more severe, condemning to the stake all engaged in such practices (Kenethi 
Leg. Civil, cap. 18 — Spelman. Concil. I. 341) ; while in Hungary, for ordi- 
nary witchcraft, on a first offence the criminal was only handed to the Bishop 
to be reformed by fasting and the catechism ; a second offence was visited 
with branding on the forehead, head, and back, in the form of a cross with a 



224 THE ORDEAL. 

the pure element refused to receive those who were tainted 
with crime, there was in this special class of cases a 
widely spread superstition that adepts in sorcery and 
magic lost their specific gravity. Pliny mentions a race of 
enchanters on the Euxine who were lighter than water — 
" eosdem non posse mergi . . . ne veste quidam degravatos j" 
and Stephanus Byzantinus describes the inhabitants of 
Thebe as magicians who could kill with their breath, and 
floated when thrown into the sea. 1 This whimsical opinion 
was perpetuated to a comparatively late period, and gave 
rise to a species of ordeal known as the trial by balance, 
in which the suspected sorcerer was weighed to ascertain 
his guilt, enabling him, we may presume, to escape, except 
when the judges, determined to procure a conviction, man- 
church key: but when life was attempted in such practices, the sorcerer was 
delivered to the sufferer or his friends to be treated at their discretion (Legg. 
S. Stephani, c. xxxi. xxxii). The progress of enlightenment in Hungary- 
was rapid, for, by the end of the century, we find King Coloman contenting 
himself with the brief remark, " De strigis vero quae non sunt, nulla quaestio 
fiat" (Decret. Coloman. c. 20— Batthyani, Legg. Eccles. Hung. T. I. p. 455). 

The cause of humanity gained but little when, all such accusations being 
included in the convenient general charge of heresy, for five hundred years 
luckless sharpers and dupes were committed pitilessly to the flames. King 
James I. briefly dismisses the question of their punishment with the appro- 
priate remark, "Passim obtinuit ut crementur. Quanquam in hac re sua 
cuique genti permittenda est consuetudo." (Demonologiae Lib. in. c. vi.) 
Even in the enlightenment of the seventeenth century, who can read without 
grim disgust and wonder the terrible farce of the trial of Urbain Grandier, 
hurrying, amid details ludicrously revolting, its unfortunate victim through 
torture to the stake, to gratify the quenchless malice of Cardinal Riche- 
lieu ? Nor did the tragedy cease for yet a hundred years. In the middle 
of the eighteenth century, Muratori could still write — " Novimus etiam inno- 
centes prsesertim mulieres interdum in veneficii suspicionem adductas fuisse 
in quibusdam Christiani orbis partibus, et aut igni datas, aut mortis pericu- 
lum vix evasisse : neque alia de caussa reas vulgo creditas quam quod sub 
fasce annorum illarum humeri jam curvarentur." — (Antiq. Ital. Dissert. 59.) 

Perhaps the superstition of the devouring of living men by witches may 
find its last lingering remnants in the vampirism of Eastern Europe. 

1 Ameilhon, de l'Epreuve de l'Eau Froide. 



ORDEAL OP COLD WATER. 225 

aged to elude the vigilance of the inspectors. 1 To the 
concurrence of these notions we may attribute the fact 
that when the cold-water ordeal was abandoned, in the 
thirteenth century, as a judicial practice in ordinary cases, 
it still maintained its place as a special mode of trying 
those unfortunate persons whom their ovm folly, or the 
malice and fears of their neighbors, pointed out as witches 
and sorcerers. 2 No less than a hundred years after the 
efforts of Innocent III. had virtually put an end to all the 
other forms of vulgar ordeals, we find Louis Hutin ordering 
its employment in these cases. 3 At length, however, it fell 
into desuetude, until the superstitious panic of witchcraft 
which took possession of the popular mind in the second 
half of the sixteenth century caused its revival. 4 The 

1 Rickius (Defens. Probae Aq. Frigid. § 41), writing in 1594, speaks of this 
as a common practice in many places, and gravely assures us that very large 
and fat women had been found to weigh only thirteen or fifteen pounds. 
Konigswarter (op. cit. p. 186) states that as late as 1728, at Szegedin in 
Hungary, thirteen persons suspected of sorcery were, by order of court, 
subjected to the ordeal of cold water, and then to that of the balance. At 
Oudewater in Holland, according to the same authority, the scales used on 
these occasions are still to be seen. A modification of the trial by balance 
consisted in putting the accused into one scale and a Bible into the other. 
(Collin de Plancy, s. v. Bibliomancie.) 

As the simplest, least painful, and perhaps most easily manipulated form 
of ordeal, this was monopolized in India by the Brahmins. As practised by 
them, the suitor was weighed, and then, after certain religious ceremonies, 
he was weighed again. If he had lost weight meanwhile, he was pronounced 
victorious, but if his density remained stationary, he was condemned. 
(Ayeen Akbery, II. 496.) 

3 In earlier times, various other modes of proof were habitually practised. 
Among the Lombards, King Rotharis prescribed the judicial combat (L. 
Longobard. Lib. i. Tit. xvi. § 2). The Anglo-Saxons (iEthelstan, cap. vi.) 
direct the triple ordeal, which was either red-hot iron or boiling water. 

3 Ille adversus quern maleficium factum fuerit vel proditio, si alium accu- 
saverit, de quo aliqua suspicio sit curiae, accusatus recipiet judicium aquae 
frigidae. — Regest. Ludovici Hutini (ap. Cangium). 

4 Scribonius, writing in 1583, speaks of it as a novelty "utpote quae in 
aliis Germaniae partibus vix audita esset;" but Neuwald assures us that it 
had been universally employed for eighteen years previous — " sed in West- 
phalia ferine ante annos octodecim est passim observata." 



226 THE ORDEAL. 

crime was one so difficult to prove judicially, and the 
ordeal offered so ready and so satisfactory a solution to 
the doubts of timid and conscientious judges, that its 
extensive use is not to be wondered at. The professed 
Daemonographers, Bodin, Binsfeld, Godelmann, and others, 
either openly rejected it, or omitted all reference to it, but 
still it did not want defenders. In 1583, a certain Scribo- 
nius, on a visit to Lemgow, saw three unfortunates burnt 
as witches, and three other women, the same day, exposed 
to the ordeal on the accusation of those executed. He 
describes them as stripped naked, hands and feet bound 
together, right to left, and then cast upon the river, where 
they floated like logs of wood. Profoundly impressed with 
the miracle, in a letter to the magistrates of Lemgow, he 
expresses his warm approbation of the proceeding and 
endeavors to explain its rationale, and to defend it against 
unbelievers. Sorcerers, from their intercourse with Satan, 
partake of his nature ; he resides within them, and their 
human attributes become altered to his ; he is an imponder- 
able spirit of air, and therefore they likewise become lighter 
than water. Two years later, Hermann Neuwald published 
a tract in answer to this, gravely confuting the arguments 
advanced by Scribonius, who, in 1588, returned to the 
attack with a larger and more elaborate treatise in favor 
of the ordeal. In 1594, a more authoritative combatant 
entered the arena — Jacob Rickius, a learned jurisconsult 
of Cologne, who, as judge in the court of Bonn, had ample 
opportunity of considering the question, and of putting 
his convictions into practice. 1 He describes vividly the 

1 These various tracts were collected together and reprinted in 1686 at 
Leipsic, in 1 vol. 4to. It contains Rickius's " Compendiosa certisque modis 
astricta defensio Probae Aquae Frigidae, quae in examinatione maleficarum 
plerique judices hodie utuntur;" the " Epistola de Purgatione Sagarum 
super Aquam frigidam projectarum" of Scribonius; and Neuwald's "Exe- 
gesis Purgationis sive Examinis Sagarum, Ac." There are few more curious 
pictures of the age to be found by the student of the mysteries of human 
intelligence. 



ORDEAL OF COLD WATER. 227 

perplexities of the judges hesitating between the enormity 
of the crime and the worthlessness of the evidence, and 
his elaborate discussions of all the arguments in its favor 
may be condensed into this : that the offence is so difficult 
of proof that there is no other certain evidence than the 
ordeal ; that without it we should be destitute of absolute 
proof, which would be an admission of the superiority of 
the Devil over God, and that anything would be preferable 
to such a conclusion. He states that he never administered 
it when the evidence without it was sufficient for conviction, 
nor when there was not enough other proof to justify the 
use of torture ; and that in all cases it was employed as a 
prelude to torture — " prseparandum et muniendum torturae 
viam" — the latter being frequently powerless in consequence 
of diabolical influences. The sickening instances which he 
details with much complacency as irrefragable proofs of 
his positions show how frequent and how murderous were 
the cases of its employment, but would occupy too much 
space for recapitulation here ; while the learning displayed 
in his constant citations from the Scriptures, the Fathers, 
the Roman and the Canon Law, is in curious contrast with 
the superstitious cruelty of his acts and doctrines. 

In France, the central power had to be invoked to put 
an end to the atrocity of such proceedings. In 1588, an 
appeal was taken to the supreme tribunal from a sentence 
pronounced by a Champenois court, ordering a prisoner to 
undergo the experiment, and the Parlement in December, 
1601, registered a formal decree against the practice; an 
order which it found necessary to repeat, August 10th, 1641. 1 
That this latter was not uncalled for, we may assume from 
the testimony of the celebrated Jerome Bignon, who, writing 
nearty at the same time, says that, to his own knowledge, 
within a few years, judges were in the habit of elucidating 

1 Konigswarter, op. cit. p. 176. 



228 THE ORDEAL. 

doubtful cases in this manner. 1 In England, James I. grati- 
fied at once his conceit and his superstition by eulogizing 
the ordeal as an infallible proof in such cases. His argu- 
ment was the old one, which pronounced that the pure 
element would not receive those who had renounced the 
privileges of their baptism, 2 and his authority no doubt 
gave encouragement to innumerable instances of cruelty 
and oppression. How slowly the belief was eradicated 
from the minds of even the educated and enlightened may 
be seen in a learned inaugural thesis presented by J. P. 
Lang, in 1661, for the Licentiate of Laws in the University 
of Basel, in which, discussing incidentally the question of 
the cold-water ordeal for witches, he concludes that perhaps 
it is better to abstain from it, though he cannot question 
its efficaciousness as a means of investigation. 3 Even in 
the middle of the eighteenth century, the learned and pious 
Muratori affirms his reverent belief in the miraculous con- 
victions recorded by the mediaeval writers as wrought in this 
manner by the judgment of God, 4 and he farther informs us 
that it was common throughout Transylvania in his time ; 5 
while in West Prussia, as late as 1T45, the Synod of Culm de- 
scribes it as a popular abuse in common use, and stringently 
forbids it for the future. 6 We have already alluded to the 

1 " Porro, nostra memoria, paueis abhinc annis, solebant judices reos 
maleficii accusatos mergere, pro certo habentes incertum crimen hac ratione 
patefieri." — Notse ad Legem Salicam. 

2 Tanquam aqua suum in sinum eos non admitteret, qui excussa baptismi 
aqua, se omni illius sacramenti beneficio ultro orbarunt. — Demonologiae Lib. 
in. cap. vi. 

3 Tutius erit ab eo abstinere, neque refragatur quod saepe per hoc tentamen 
Veritas explorata fuit. — Dissert. Inaug. de Torturis Th. xviii. § xi. Basil. 
1661. 

4 Quibus in exemplis vides, sese Deum accommodasse interdum ad homi- 
num piam fidem et preces. — Antiq. Ital. Dissert. 38. 

5 Si vera sunt etiam quas interdum audivi, in Transylvania, perdurat aclhuc 
experimentum aquae ad dignoscendas sagas, sive incantatrices maleficas, 
quarum ingens copia ibi traditur esse.— Ibid. 

G Qui ex levi suspicione, in tali crimine delatas, nee confessas, nee con- 



ORDEAL OF COLD WATER. 229 

employment of the water ordeal by an Hungarian tribunal 
as late as the eighteenth century. Although, within the 
last hundred years, it has disappeared from the authorized 
legal procedures of Europe, still the popular mind has not 
as yet altogether overcome the superstitions and prejudices 
of so many ages, and occasionally in some benighted spot 
an outrage occurs to show us that mediaeval ignorance and 
brutality still linger amid the triumphs of modern civiliza- 
tion. In 1815, Belgium was disgraced by a trial of the kind 
performed on an unfortunate person suspected of witch- 
craft ; and in 1836, the populace of Hela, near Dantzic, 
twice plunged into the sea an old woman reputed to be a 
sorceress, and as the miserable creature persisted in rising 
to the surface, she was pronounced guilty, and beaten to 
death. 1 

Perhaps we may class as a remnant of this superstition 
a custom described by a modern traveller as universal in 
Southern Russia. When a theft is committed in a house- 
hold, the servants are assembled, and a sorceress, or vorogeia, 
is sent for. Dread of what is to follow generally extorts a 
confession from the guilty party without further proceed- 
ings, but if not, the vorogeia places on the table a vase of 
water and rolls up as many little balls of bread as there are 
suspected persons present. Then, taking one of the balls, 
she addresses the nearest servant — " If you have committed 
the theft, this ball will sink to the bottom of the vase, as 
will your soul in Hell ; but if you are innocent, it will float 
on the water." The truth or falsehood of this assertion is 
never tested, for the criminal invariably confesses before 
his turn arrives to undergo the ordeal. 2 

victas, ad torturas, supernatationem aquarum, et alia eruendae veritatis 
media, tandem ad ipsam mortem condemnare . . . non verentur, exempla 
proh dolor! plurima testantur.— Synod. Culmens. et Pomesan. ann. 1745, 
c. v. (Hartzheim. Concil. German. X. 510.) 

1 Kb'nigswarter, op. cit. p. 177. 

2 Hartausen, Etudes sur la Russie. (Du Boy?, Droit Criminel des Peuples 
Modernes, I. 256.) 

20 



230 THE ORDEAL. 

The ordeal of the cross (judicium cruris, stare ad crucem) 
was one of simple endurance. The plaintiff and defendant, 
after appropriate religious ceremonies and preparation, 
stood with uplifted arms before a cross, while divine service 
was performed, victory being adjudged to the one who was 
able longest to maintain his position. 1 The earliest allu- 
sion to it which I have observed occurs in a Capitulary of 
Pepin-le-Bref, in 752, where it is prescribed in cases of 
application by a wife for dissolution of marriage. 2 Char- 
lemagne appears to have regarded it with much favor ; for 
he not only frequently refers to it in his edicts, but, when 
dividing his mighty empire, in 806, he directs that all terri- 
torial disputes which may arise in the future between his 
sons shall be settled in this manner. 3 An example occur- 
ring during his reign shows the details of the process. A 
controversy between the Bishop and citizens of Yerona, 
relative to the building of certain walls, was referred to the 
decision of the cross. Two young ecclesiastics, selected as 
champions, stood before the sacred emblem from the com- 
mencement of mass ; at the middle of the Passion, Aregaus, 
who represented the citizens, fell lifeless to the ground, 
while his antagonist, Pacificus, held out triumphantly to 
the end, and the Bishop gained his cause, as ecclesiastics 
were wont to do. 4 

When a person desired to discredit the compurgators of 

1 A formula for judgments obtained in this manner by order of court, in 
cases of disputed title to land, occurs in the Formulae Bignonianse, No. xii. 

3 Si qua mulier se reclamaverit quod vir suus nunquam cum ea mansisset, 
exeant inde ad crucem, et si verum fuerit, separentur, et ilia faciat quod 
vult. — Capit. Pippini ann. 752, § xvii. 

3 Si caussa vel intentio sive controversia talis inter partes propter ter- 
minos aut confinia regnorum orta fuerit quge hominum testimonio declarari 
vel definiri non possit, tunc volumus ut ad declarationem rei dubise, judicio 
crucis, Dei voluntas et rerum Veritas inquiratur. — Chart. Division, cap. xiv. 
The allusions to it throughout the Capitularies of this monarch are very 
frequent; for instance, Capit. ann. 779, § x. ; Capit. iv. ann. 803, §§ iii. vi. ; 
in L. Longobard. Lib. n. Tit. xxviii. § 3; Tit. Iv. § 25, etc. 

4 Ughelli, Italia Sacra, T. V. p 610 (ap. Baluz. Not. ad Lihb. Capit). 



ORDEAL OF THE CROSS. 231 

an adversary, he had the right to accuse them of perjury, 
and the main question was then adjourned until this second- 
ary point was decided by this process. 1 In a similar spirit, 
witnesses too infirm to undergo the battle-trial, by which in 
the regular process of law they were bound to substantiate 
their testimony, were allowed, by a Capitulary of 816, to 
select the ordeal of the cross, with the further privilege, in 
cases of extreme debility, of substituting a relative or other 
champion, whose robustness promised an easier task for 
the Divine interference. 3 

A slight variation of this form of ordeal consisted in 
standing with the arms extended in the form of a cross, 
while certain portions of the service were recited. In this 
manner, St. Lioba, Abbess of Bischoffsheim, triumphantly 
vindicated the purity of her flock, and traced out the 
offender, when the reputation of her convent was imperilled 
by the discovery of a new-born child drowned in a neigh- 
boring pond. 3 

The sensitive piety of Louis-le-Debonnaire was shocked 
at this use of the cross, as tending to bring the Christian 
symbol into contempt, and in 816, soon after the death of 
Charlemagne, he prohibited its continuance, at the Council 
of Aix-la-Chapelle; 4 an order which was repeated by his son, 
the Emperor Lothair. 5 Baluze, however, considers, with 
apparent reason, that this command was respected only in 

1 Si ille homo cujus causa jurata fuerit, dicere voluerit quod ille qui juravit 
se seiens perjurasset, stent ad crucem. — Capit. Car. Mag. incerti anni c. x. 
(Hartzheim Concil. German. I. 426.) 

2 Namque si debiliores ipsi testes fuerint, tunc ad crucem examinentur. 
Nam si majoris setatis, et non possint ad crucem slare, tunc mittant aut filios 
aut parentes, aut qualescunque homines possint, qui pro eis hoc tendunt. — 
Capit. Lud. Pii ann. 816, § i. (Eccardi L. Francorum, pp. 183, 184.) 

3 Rudolph. Fuldens. Vitae S. Liobae cap. xv. (Du Cange, s. v. Cruets 
Judicium.) 

4 Sancitum est ut nullus deinceps quamlibet examinationem crucis facere 
praesumat, ne quae Christi passione glorificata est, cujuslibet temeritate con- 
temptui habeatur. — Concil. Aquisgran. cap. xvii. 

6 L. Longobard. Lib. n. Tit. lv. § 32. 



232 THE ORDEAL. 

the Rhenish provinces and in Italy, from the fact that the 
manuscripts of the Capitularies belonging to those regions 
omit the references to the ordeal of the cross, which are 
retained in the copies used in the other territories of the 
Frankish empire. 1 Louis himself would seem at length to 
have changed his opinion ; for, in the final division of his 
succession between his sons, he repeats the direction of 
Charlemagne as regards the settlement of disputed bound- 
aries. 2 The procedure, however, appears to have soon lost 
its popularity, and indeed never to have obtained the wide 
and deeply-seated hold on the veneration of the people 
enjoyed by the other forms of ordeal. We see little of it at 
later periods, except the trace it has left in the proverbial 
allusion to an eocperimentum crucis. 

The ordeal of consecrated bread or cheese {judicium 
offse, panis conjuratio, the corsnsed of the Anglo-Saxons) 
was administered by presenting to the accused a piece of 

1 Not. ad Libb. Capit. Lib. I. cap. 103. This derives additional proba- 
bility from the text cited immediately above, relative to the substitution of 
this ordeal for the duel, which is given by Eckhardt from an apparently 
contemporary manuscript, and which, as we have seen, is attributed to 
Louis-le-Debonnaire in the very year of the Council of Aix-la-Chapelle. It 
is not a simple Capitulary, but an addition to the Salique Law, which invests 
it with much greater importance. Lindenbruck (Cod. Legum Antiq. p. 355) 
gives a different text, purporting likewise to be a supplement to the Law, 
made in 816, which prescribes the duel in doubtful cases between laymen, 
and orders the ordeal of the cross for ecclesiastical causes — "in Ecclesi- 
asticis autem negotiis, crucis judicio rei Veritas inquiratur" — and allows the 
same privilege to the " imbecillibus aut infirmis qui pugnare non valent." 
Baluze's collection contains nothing of the kind as enacted in 816, but under 
date of 819 there is a much longer supplement to the Salique law, in which 
cap. x. presents the same general regulations, almost verbatim, except that 
in ecclesiastical affairs the testimony of witnesses only is alluded to, and the 
judicium crucis is altogether omitted. The whole manifestly shows great 
confusion of legislation. 

3 Chart. Divisionis ann. 837 cap. x. The words used are identical with 
those of Charlemagne, with the substitution of " vexillo crucis" for "judicio 
crucis." The word vexillum is frequently employed in the sense of signum 
or testimonium in signatures to diplomas. 



ORDEAL OP BREAD. 233 

bread (generally of barley) or of cheese, about an ounce in 
weight, 1 over which prayers and adjurations had been pro- 
nounced. After appropriate religious ceremonies, including 
the communion, the morsel was eaten, the event being de- 
termined by the ability of the accused to swallow it. This 
depended of course on the imagination, and we can readily 
understand how, in those times of faith, the impressive 
observances which accompanied the ordeal would affect 
the criminal, who, conscious of guilt, stood up at the altar, 
took the sacrament, and pledged his salvation on the truth 
of his oath. The mode by which a conviction was expected 
may be gathered from the forms of the exorcism employed, 
of which a number have been preserved. 

a O Lord Jesus Christ, . . . grant, we pray thee, by thy holy name, 
that he who is guilty of this crime in thought or in deed, when this 
creature of sanctified bread is presented to him for the proving of the 
truth, let his throat be narrowed, and in thy name let it be rejected 
rather than devoured. And let not the spirit of the Devil prevail in 
this to subvert the judgment by false appearances. But he who is 
guilty of this crime, let him, chiefly by virtue of the body and blood 
of our Lord which he has received in communion, when he takes the 
consecrated bread or cheese tremble, and grow pale in trembling, and 
shake in all his limbs ; and let the innocent quietly and healthfully, 
with all ease, chew and swallow this morsel of bread or cheese, 
crossed in thy holy name, that all may know that thou art the just 
Judge," &c. 2 

And even more whimsical in its devout impiety is the 
following : — 

" God Most High, who dwellest in Heaven, who through thy 
Trinity and Majesty hast thy just angels, send, Lord, thy Angel 
Gabriel to stick in the throat of those who have committed this theft, 
that they may neither chew nor swallow this bread and cheese created 
by Thee. I invoke the patriarchs, Abraham, Isaac, and Jacob, with 
twelve thousand Angels and Archangels. I invoke the four Evan- 

1 Half an ounce, according to a formula in a MS. of the ninth century, 
printed by Dom Gerbert (Patrolog. 138, 1142). 

2 Exorcismus panis hordeacei vel casei. Baluze, II. 655. 

20* 



234 THE ORDEAL. 

gelists, Matthew, Mark, Luke, and John. I invoke Moses and Aaron, 
who divided the sea. That they may bind to their throats the tongues 
of the men who have committed this theft, or consented thereto. If 
they taste this bread and cheese created by Thee, may they tremble 
like a trembling tree, and have no rest, nor keep the bread and cheese 
in their mouths, that all may know Thou art the Lord and there is 
none other but Thee!" 1 

A striking illustration of the superstitions connected 
with this usage is found in the story related by most of 
the English chroniclers concerning the death of the pow- 
erful Godwin, Duke of Kent, father of King Harold, and 
in his day the king-maker of England. As he was dining 
with his royal son-in-law, Edward the Confessor, some 
trivial circumstance caused the king to repeat an old accu- 
sation that his brother Alfred had met his death at God- 
win's hands. The old but fiery Duke, seizing a piece of 
bread, exclaimed : " May God cause this morsel to choke 
me if I am guilty in thought or in deed of this crime." 
Then the king took the bread and blessed it, and Godwin, 
putting it in his mouth, was suffocated by it, and fell dead. 3 
A poetical life of Edward the Confessor, written in the 
thirteenth century, gives a graphic picture of the death of 
the Duke and the vengeful triumph of the King : — 

1 Muratori, Antiq. Ital. Dissert. 38. 

2 This account, with unimportant variations, is given by Roger of Wen- 
dover, ann. 1054, Matthew of Westminster, ann. 1054, the Chronicles of 
Croyland, ann. 1053, Henry of Huntingdon, ann. 1053, and William of 
Malmesbury, Lib. II. cap. 13 ; which shows that the legend was widely 
spread and generally believed, although the Anglo-Saxon Chronicle, ann. 
1052, and Roger de Hoveden, ann. 1053, in mentioning Godwin's death, 
make no allusion to its being caused in this manner. A similar reticence is 
observable in an anonymous Life of Edward (Harleian MSS. 526), p. 408 of 
the collection in Rer. Britann. Script., and although this is perhaps the best 
authority we have for the events of his reign, still the author's partiality for 
the family of Godwin renders his evidence in this respect liable to suspicion. 

No great effort of scepticism is requisite to suggest that Edward, tired of 
the tutelage in which he was held, may have made way with Godwin by 
poison, and then circulated the story related by the annalists to a credulous 
generation. 



ORDEAL OF BREAD. 235 

"L'aleine e parole pert 
Par le morsel ki ferra s'ahert. 
Morz est li seuglant felun ; 
Mut out force la benaicun, 
Ke duna a mors vertu, 
Par unc la mort provee fu, 
'Atant' se escrie li rois, 
' Treiez hors ceu clien punois.' " ! 

This form of ordeal never obtained the extended influ- 
ence which characterized some of the other modes, and it 
seems to have been chiefly confined to the populations allied 
to the Saxon race. In England, before the Conquest, it was 
enjoined on the lower orders of the clergy, 3 and it may be 
considered as a plebeian mode of trial, rarely rising into 
historical importance. Its vitality, however, is demon- 
strated by the fact that Lindenbruck, writing in 1613, 
states that it was then still in frequent use. 3 

Aimoin relates a story which, though in no sense judi- 
cial, presents us with an instance of the same superstition. 
A certain renowned knight named Arnustus unjustly oc- 
cupied a property belonging to the Benedictine Abbey of 
Fleury. Dining there one day, and boasting of his con- 
tempt for the complaints of the holy monks, he took a pear 
and exclaimed — "I call this pear to witness that before the 
year is out I will give them ample cause for grumbling." 
Choking with the first morsel, he was carried speechless to 
bed, and miserably perished unhouselled, a warning to 
evil-doers not to tempt too far the patience of St. Benedict.* 
These stories are by no means uncommon, and are interest- 
ing as a picture of the times, when they were reverently 
received, and formed a portion of the armory by which the 
weak defended themselves against the strong. Somewhat 

1 Lives of Edward the Confessor, p. 119 (Rer. Britann. Script.). 

2 Dooms of Ethelred, ix. § 22 ; Cnut. Eccles. Tit. v. 

3 Alium examinis modum, nostro etiamnunc saeculo, saepe malo modo 
usitatum. — Cod. Legum Antiq. p. 1418. 

4 De Mirac. S. Benedicti. Lib. i. c. v. 



236 THE ORDEAL. 

similar is an occurrence related about the year 1090, when 
Duke Henry of Limburg was involved in a quarrel with 
Engilbert, Archbishop of Treves, and treated the excom- 
munication and anathema inflicted upon him with contempt. 
Joking upon the subject with his followers one day at din- 
ner, he tossed a fragment of food to his dog, remarking 
that if the animal ate it, they need not feel apprehensive of 
the episcopal curse. The dog refused the tempting morsel, 
though he manifested his hunger by eagerly devouring food 
given him by another hand, and the Duke, by the advice of 
his counsellors, lost no time in reconciling himself with his 
ghostly adversary. This is the more remarkable, as Engil- 
bert himself was under excommunication by Gregory TIL, 
being a stanch imperialist, who had received his see from 
Henry IV. and his pallium from the antipope Gruiberto. 1 

In India, this ordeal is performed with a kind of rice 
called sathee, prepared with various incantations. The 
person on trial eats it, with his face to the East, and then 
spits upon a Peepul leaf. "If the saliva is mixed with 
blood, or the corners of his mouth swell, or he trembles, 
he is declared to be a liar." 2 

A simplification of the ordeal of consecrated bread was 
the trial by the Eucharist, which indeed may be regarded 
as bearing a similar relation to all the forms of ordeal, as 
its administration was invariably a portion of the prepara- 
tory ceremony, with the awful adjuration, "May this body 
and blood of our Lord Jesus Christ be a judgment to 
thee this day!" The general use of the sacrament to lend 
authority and solemnity to transactions, and the binding 
force it was thought to give to treaties, agreements, and 
the testimony of witnesses, might seem to remove it in its 
simplicity from among the list of ordeals proper, were it 

1 Gesta Treverorum, continuat. I. (Patrol. 154, 1205-6.) 
3 Ayeen Akbery, II. 498. 



THE EUCHARIST. 23? 

not for the superstition of the age which believed that, 
when the consecrated wafer was offered under appropriate 
invocations, the guilty could not receive it, or that, if it 
were taken, immediate convulsions and speedy death, or 
some other miraculous manifestation, ensued. This is well 
illustrated by a form of exorcism preserved by Mansi: 
" We humbly pray thy Infinite Majesty that this priest, if 
guilty of the accusation, shall not be able to receive this 
venerated body of thy Son, crucified for the salvation of 
all, and that what should be the remedy of all evil shall 
prove to him hurtful, full of grief and suffering, bearing 
with it all sorrow and bitterness." 1 What might be ex- 
pected under such circumstances is elucidated by a case 
which occurred in the early part of the eleventh century, as 
reported by Rodolphus Glaber, a contemporary, in which a 
monk, condemned to undergo the trial, boldly received the 
sacrament, when the Host, indignant at its lodgment in 
the body of so perjured a criminal, immediately slipped 
out at the navel, white and pure as before, to the immense 
consternation of the accused, who forthwith confessed his 
crime. 3 

The antiquity of this mode of trial is shown in its em- 
ployment by Cautinus, Bishop of Auvergne, towards the 
close of the sixth century. A certain Count Eulalius was 
popularly accused of parricide, whereupon he was suspended 
from communion. On his complaining of thus being pun- 
ished without a trial, the bishop administered the sacra- 
ment under the customary adjuration, and Eulalius, taking 

1 Baluz. et Mansi Miscell. II. 575. 

2 Lib. v. cap. i. Somewhat similar is the story of a volunteer miracle 
vouchsafed to an unchaste priest at Lindisfarne, who being suddenly sum- 
moned to celebrate mass without having had time to purify himself, when he 
came to partake of the sacramental cup. saw the wine change to an exceeding 
blackness. After some hesitation he took it, and found it bitter to the last 
degree. Hurrying to his bishop, he confessed his sin, underwent penance, 
and reformed his life. (Roger of Wendover, ann. 1051.) 



238 THE ORDEAL. 

it without harm, was relieved from the imputation. 1 It 
was usually, however, a sacerdotal form of purgation, as is 
shown by the Anglo-Saxon laws, 3 and by the canons of the 
Councils of Tribur and Worms directing its employment, 
in all cases of ecclesiastics charged with crimes, to relieve 
them from the necessity of taking oaths. 3 Thus, in 941, 
Frederic, Archbishop of Mainz, publicly submitted to an 
ordeal of this kind, to clear himself of the suspicion of 
having taken part in an unsuccessful rebellion of Henry, 
Duke of Bavaria, against his brother, Otho the Great. 4 
After the death of Henry, slander assailed the fame of his 
widow, Juthita, on account of an alleged intimacy between 
her and Abraham, Bishop of Frisingen. When she, too, 
died, the bishop performed her funeral rites, and, pausing 
in the mass, he addressed the congregation : " If she was 
guilty of that whereof she was accused, may the Omnipo- 
tent Father cause the body and blood of the Son to be my 
condemnation to just perdition, and perpetual salvation to 
her soul!" — after which he took the sacrament unharmed, 
and the people acknowledged the falsity of their belief. 5 
So in 1050, Subico, Bishop of Speyer, cleared himself of a 
similar accusation at the Council of Mainz, in the same 
manner. 6 

Perhaps the most striking instance recorded of its admi- 
nistration was, however, in a secular matter, when in 869 
v it closed the unhappy controversy between King Lothair 

1 Greg. Turon. Hist. Lib. x. cap. 8. 

2 Dooms of Ethelred, x. § 20 ; Cnut. Eccles. Tit. v. 

3 Can. Statuit quoque. Caus n. quqest. v. — Concil. Vorinat. arm. 868, 
can. 15. 

4 Reginonis Continuat. Ann. 941. 

5 Dithmari Chron. Lib. n. 

6 Hist. Archiep. Bremens. ann. 1051. (Lindenbrog. Script. Septentrion. 
p. 90.) Lambert. Schafnab. ann. 1050. Another account of the transaction, 
however, states that the bishop's jaw became paralyzed in the act, " terrifico 
Sacramento Dominici corporis," and remained in that condition until his 
death (Hartzheim Concil. German. III. 112). 



THE EUCHARIST. 239 

and his wives, to which reference has "been already made. 
To reconcile himself to the Church, Lothair took a solemn 
oath before Adrian II. that he had obeyed the ecclesiastical 
mandates in maintaining a complete separation from his 
pseudo-wife Waldrada, after which the pontiff admitted him 
to communion, under an adjuration that it should prove 
the test of his truthfulness. Lothair did not shrink from 
the ordeal, nor did his nobles, to whom it was given on 
their declaring that they had not abetted the designs of 
the concubine ; but, leaving Rome immediately afterwards, 
the royal cortege was stopped at Piacenza by a sudden epi- 
demic which broke out among the courtiers, and there 
Lothair died, August 8th, with nearly all of his followers — 
an awful example held out by the worthy chroniclers as a 
warning to future generations, " for he who eats and drinks 
it unworthily eats and drinks his own condemnation." 1 

In this degradation of the Host to the level of daily life, 
there was a profanity which could hardly fail to disgust a 
reverential mind, and we are therefore not surprised to find 
King Robert the Pious, in the early part of the eleventh 
century, raising his voice against its judicial use, and 
threatening to degrade the Archbishop of Sens for employ- 
ing it in this manner, especially as his biographer informs 
us that the custom was daily growing in favor. a Robert's 
example was soon afterwards imitated by Alexander II. 
who occupied the pontifical chair from 1061 to 10T3. 3 The 
next pope, however, the impetuous Hildebrand, made use 
of it on a memorable occasion, and in a manner productive 
of lasting results. When, in 101 T, the unhappy Emperor 
Henry IV. had endured the depths of humiliation before 

1 Regino, ann. 869; Annal. Bertiniani. "But let a man examine him- 
self, and so let him eat of that bread and drink of that cup, for he that eateth 
•and drinketh unworthily, eateth and drinketh damnation to himself, not dis- 
cerning the Lord's body."— 1 Corinth, xi. 28, 29. 

3 Helgaldi Epitome Vitse Roberti Regis. 

3 Duclos, Memoire sur les Epreuves. 



240 THE ORDEAL. 

the arrogant pontiff's castle gate at Canosa, and had at 
length purchased peace by submitting to all the exactions 
demanded of him, the excommunication under which he 
had lain was removed in the chapel. Then Gregory, refer- 
ring to the crimes imputed to himself by the emperor's 
partisans, said that he could easily refute them by abundant 
witnesses ; " but lest I should seem to rely rather on human 
than divine testimony, and that I may remove from the 
minds of all, by immediate satisfaction, every scruple, 
behold this body of our Lord which I am about to take. 
Let it be to me this day a test of my innocence, and 
may the Omnipotent God this day by his judgment 
absolve me of the accusations if I am innocent, or let 
me perish by sudden death, if guilty!" Swallowing the 
wafer, he turned to the emperor, and demanded of him 
the same refutation of the charges urged against him by the 
German princes. Appalled by this unexpected trial, Henry 
in an agony of fear evaded it, and, trembling, consulted 
hurriedly with his councillors how to escape the awful test. 
Finally he declined on the ground of the absence of both 
his friends and his enemies, without whose presence the 
result would establish nothing; and thus, to avoid the 
present danger of his imagination, he promised to submit 
to a trial by the Imperial Diet. By this he lost the results 
so dearly bought by his sacrifices and humiliations, and 
perpetuated the civil strife, to put an end to which he had 
labored and endured so much. 1 

1 Lambert. Schaffnab. ann. 1077. In estimating the mingled power of 
imagination and conscience which rendered the proposal insupportable to the 
emperor, we must allow for the influence which a man like Hildebrand with 
voice and eye can exert over those whom he wishes to impress. At an ear- 
lier stage of his career, in 1055, he improvised a very effective species of 
ordeal, when presiding as papal legate at the Council of Lyons, assembled 
for the repression of simony. A guilty bishop had bribed the opposing wit- 
nesses, and no testimony was obtainable for his conviction. Hildebrand 
addressed him : " The episcopal grace is a gift of the Holy Ghost. If, there- 
fore, you are innocent, repeat, ' Glory to the Father, and to the Son, and to 
the Holy Ghost !' " The bishop boldly commenced, " Glory to the Father, 



THE EUCHARIST. 241 

Even thus, however, he was more fortunate than Imbrico, 
Bishop of Augsburg, who, in the same j^ear, after swearing- 
fealty to Rodolph of Suabia, abandoned him and joined the 
emperor. Soon after, while saying mass before Henry, to 
prove the force of his loj^al convictions, he declared that 
the sacrament he was about to take should attest the right- 
eousness of his master's cause ; and the anti-imperialist 
chronicler duly records that sudden disease overtook him, 
to be followed by speedy death. 1 In the case of William, 
Bishop of Utrecht, as related by Hugh of Elavigny, the 
Eucharist Was less an ordeal than a punishment. He dared, 
at the Assembly of Utrecht, in 10*76, to excommunicate 
Gregory, at the command of Henry IY. ; but when, at the 
conclusion of the impious ceremony, he audaciously took 
the Host, it turned to fire within him, and, shrieking " I 
burn! I burn!" he fell down and miserably died. 3 

and to the Son, and to — " here his voice failed him, he was unable to finish 
the sentence ; and, confessing the sin, he was deposed. This anecdote rests 
on good authority. Peter Damiani states that he had it from Hildebrand 
himself (Opusc. xix. cap. vi.), and Calixus II. was in the habit of relating 
it (Pauli Bernried. Vit. Greg. VII. No. 11). 

1 Bernald. Constant. Chron. ann. 1077. 

2 Hugon. Flaviniac. Chron. Lib. II. ann. 1079. — Among the manifestations 
of belief in the miraculous powers of the Host may be mentioned the prac- 
tice of throwing on a conflagration the cloth used to cover the sacred cup, 
in the expectation that it would extinguish the flames. This superstition 
was sufficiently important to attract the reprehension and prohibition of the 
Council of Selingenstadt in 1022. " Conquestum est . . . de quibusdam 
stultissimis presbyteris ut quando incendium videant, corporale dominico 
corpore consecratum, ad extinguendum incendium temeraria praesumptione 
in ignem projiciant. Ideoque decretum est sub anathematis interdictione, 
ne ulterius fiat." — (Concil. Selingens. cap. vi.) A less harmless belief in the 
virtues of the body of our Lord was shown during the terrible persecution 
which repressed the religious movement of Germany in the second quarter of 
the thirteenth century. It is gravely related that among the thousands of 
unfortunate heretics who expiated their perverseness at the stake, one poor 
wretch would not burn, and obstinately resisted the efforts of his torturers, 
until some one brought to the pile a holy wafer, when the unbeliever was 
promptly reduced to a cinder. (Alberic. Trium Fontium Chron. ann. 1233.) 

21 



242 THE ORDEAL. 

The ordeal of the lot left the decision to pure chance, 
in the hope that Heaven would interpose to save the 
innocent and punish the guilty. We may assume that 
this was extensively practised in Pagan times, but 
that, on the introduction of Christianity, it gradually 
became obsolete, as the various modes of appealing to the 
Deity, which are described above, acquired importance 
and threw the less impressive reference to the lot into 
insignificance. The only allusions to it occur in the ear- 
lier laws, and no trace of it is to be met with in the 
subsequent legislation of any race. Mention of it is made 
in the BApuarian code, 1 and in some of the earlier Merovin- 
gian documents its use is prescribed in the same brief 
manner. 3 Indeed, as late as the middle of the eighth 
century, Ecgberht, Archbishop of York, quotes from the 
canons of the Council of Ireland (probably that of A. D. 456) 
a direction for its employment in cases of sacrilegious theft, 
as a means of determining the punishment to be inflicted. 3 
On the other hand, shortly after, the Council of Calchuth, 
in England, condemned the practice between litigants as a 
remnant of paganism. 4 

No explanation is given of the details of the process by 
which this appeal to fortune was made, and I know of no 
contemporary applications by which its formula can be inves- 

1 Ad ignem seu ad sortem se excusare studeat. — Tit. xxxi. § 5. 

2 Pact. Childeberti et Chlotarii, arm. 593, § 5. " Et si dubietas est, ad 
sortem ponatur." Also § 8 : "Si litus de quo inculpatur ad sortem ambu 
laverit." As in § 4 of the same document the ceneum or hot-water ordeal is 
provided for freemen, it is possible that the lot was reserved for slaves. 
This, however, is not observed in the Decret. Chlotarii, ann. 595, § 6, where 
the expression, " Si de suspicione inculpatur, ad sortem veniat," is general 
in its application, without reservation as to station. 

3 Si quis furalus fuerit pecuniam ab secclesia, mittatur sors, ut aut illius 
manus abscindatur, aut in carceitm mittatur, diu jejunans ac gemens. — 
Ecgberti Excerpt, cap. lxxxiv. (Thorpe, II. 108). 

4 Audivimus etiam quod dum inter vos litigium versatur, sortes more gen- 
tilium mittatis, quod omnino sacrilegiuin istis temporibus reputatur — Cone. 
Calchuth. can. 19 (Spelman, Concil. Brit. I. 300). 



THE LOT. 243 

tigated ; but in the primitive Frisian laws there is described 
a singular ordeal of chance, which may reasonably be as- 
sumed to bear some relation to it. When a man was killed 
in a chance-medley and the murderer remained unknown, 
the friends had a right to accuse seven of the participants 
in the brawl. Each of these defendants had then to take 
the oath of denial with twelve conjurators, after which they 
were admitted to the ordeal. Two pieces of twig, precisely 
similar, were taken, one of which was marked with a cross ; 
they were then wrapped up separately in white wool and 
laid on the altar ; prayers were recited, invoking God to 
reveal the innocence or guilt of the party, and the priest, 
or a sinless youth, took up one of the bundles. If it con- 
tained the marked fragment, the defendants were absolved ; 
if the unmarked one, the guilty man was among them. 
Each one then took a similar piece of stick and made a 
private mark upon it ; these were rolled up as before, 
placed on the altar, taken up one by one, and unwrapped, 
each man claiming his own. The one whose piece was left 
to the last was pronounced guilty, and was obliged to pay 
the wehr-gild of the murder. 1 The various modes of eccle- 
siastical divination, so frequently used in the Middle Ages 
to obtain an insight into the future, sometimes assumed 
the shape of an appeal to Heaven to decide questions of 
the present or of the past. 3 Thus when three bishops, 
of Poitiers, Arras, and Autun, each claimed the holy 

1 L. Frision. Tit. xiv. §§ 1, 2. This may not improbably be derived from 
the mode of divination practised among the ancient Germans, as described 
by Tacitus, De Moribus German, cap. x. 

2 When used for purposes of divining into the future, these practices were 
forbidden. Thus as early as 465 the Council of Vannes denounced those 
who "sub nomine fictoe religionis quas sanctorum sortes vocant divinationis 
scientiam profitentur, aut quarumcumque scripturarum inspectione futura 
promittant," and all ecclesiastics privy to such proceedings were to be ex- 
pelled from the church. (Concil. Venet. can. xvi.) This canon is repeated 
in tbe Council of Agde in 506, where the practice is denounced as one " quod 
maxima fidem catholicoe religionis infestat." (Cone. Agathens. can. xlii.) 



244 THE ORDEAL. 

relics of St. Liguaire, and human means were unavailing 
to reconcile their pretensions, the decision of the Supreme 
Power was resorted to, by placing under the altar-cloth 
three slips with their respective names inscribed, and after 
a becoming amount of prayer, on withdrawing one of them, 
the See of Poitiers was enriched with the precious remains 
by Divine favor. 1 

Somewhat similar in character was an appeal to heaven 
made by the pious monks of Abingdon, about the middle 
of the tenth century, to determine their right to the mea- 
dows of Beri against the claims of some inhabitants of 
Oxfordshire. For three days, with fasting and prayer, they 
implored the Divine omnipotence to make manifest their 
right; and then, by mutual assent, they floated on the 
Thames a round buckler, bearing a handful of wheat, in 
which was stuck a lighted taper. The sturdy Oxonians 
gaped at the spectacle from the distant bank, while a 
deputation of the more prudent monks followed close upon 
the floating beacon. Down the river it sailed, veering 
from bank to bank, and pointing out, as with a finger, the 
various possessions of the Abbey, till at last, on reaching 
the disputed lands, it miraculously left the current of the 
stream, and forced itself into a narrow and shallow channel, 
which in high water made an arm of the river around the 
meadows in question. At this unanswerable decision, the 

1 Baldric. Lib. I. Chron. Camerac. cap. 21. (Du Cange, s. v. Sors.) — In 
this the bishops were guilty of no contravention of ecclesiastical rules. That 
such trials were allowed by the canon law, when properly conducted for ap- 
propriate purposes, is shown by Gratian. Decret. Caus. 26, q. 2, can. 3, 4. 
The most extraordinary application, however, is that by which, under the 
Spanish Wisigoths, episcopal elections were sometimes decided. The second 
Council of Barcelona, in 599, directs that two or three candidates shall be 
chosen by the clergy and people, and from among these the metropolitan 
and suffragan bishops shall select by lot, " quern sors, praeunte episcoporum 
jejunio, Christo domino terminante, monstraverit, benedictio consecrationis 
accumulet." — (Concil. Barcinon. II. can. 4.) This is evidently suggested 
by the election of Matthias (Acts, I. 26). 



ORDEAL OP BLOOD. 245 

people with one accord shouted "Jus Abbendonise, jus 
Abbendonise!" and so powerful was the impression pro- 
duced, that the worthy chronicler assures us that thence- 
forth neither king, nor duke, nor prince dared to lay claim 
to the lands of Beri; showing conclusively the wisdom of 
the abbot who preferred thus to rely upon his right rather 
than on mouldy charters or dilatory pleadings. 1 

As administered in India, the ordeal of chance consists 
in writing the words dherem and adherent on plates of 
silver and lead respectively, or on pieces of white and black 
linen, which are placed in a vessel that has never held 
water. The party on trial draws out one of the pieces, 
and if it proves to be " dherem" he gains his cause. 3 

The superstition that, at the approach of a murderer, 
the body of his victim would bleed, or give some other 
manifestation of recognition, is one of ancient origin, and 
in some countries it has been made a means of investiga- 
tion and detection. Shakspeare introduces it in King 
Richard III., where Gloster interrupts the funeral of Henry 
VI. , and Lady Anne exclaims : 

"0 gentlemen, see, see! dead Henry's wounds 
Open their congealed mouths, and bleed afresh." 

The story is well known which relates that, when Richard 
Co3ur-de-Lion hastened to the funeral of his father, Henry 
II., and met the procession at Fontevraud, the blood poured 
from the nostrils of the dead king, whose end he had has- 
tened by his disobedience and rebellion. 3 The belief in 
this, as also in the ordeal of fire, is well illustrated in the 
ballad of " Earl Richard," given by Scott in the " Min- 
strelsy of the Scottish Border." 

1 Hist. Monast. de Abingdon Lib. i. (Iter. Brit. Med. iEvi Script. Vol. I. 
p. 89). 

3 Ayeen Akbery, II. 498. This ordeal is allowed for all the four castes, 
Brahmins, Kchatryas, Vaisyas, and Soudras. 

a Roger de Hoveden, ann. 1189; Roger of Wendover. 

21* 



246 THE ORDEAL. 

" { Put na the wite on me,' she said ; 
' It was my may Catherine.' 
Then they hae cut baith fern and thorn, 
To burn that maiden in. 

" It wadna take upon her cheik, 
Nor yet upon her chin ; 
Nor yet upon her yellow hair, 
To cleanse that deadly sin. 

" The maiden touched that clay-cauld corpse, 
A drap it never bled ; 
The ladye laid her hand on him, 
And soon the ground was red." 

King James I. patronized this among the other super- 
stitions to which he gave the authority of his regal appro- 
bation j 1 and in the notes to the above ballad, Scott quotes 
some curious instances of the judicial use of the belief, 
even as late as the seventeenth century. In 1611, suspicion 
arising as to the mode by which a person had met his 
death, the body was exhumed, and the neighborhood sum- 
moned to touch it, according to custom. The murderer, 
whose rank and position placed him above suspicion, 
kept away ; but his little daughter, attracted by curiosity, 
happened to approach the corpse, when it commenced 
bleeding, and the crime was proved. In another case, 
which occurred in 168*7, the indictment sets forth that blood 
rushed from the mouth and nostrils of the deceased, who 
had been found drowned, on being accidentally touched 
by his son ; and the latter was convicted and executed, 
although there was little other evidence against him except 
a generally bad character. The extent to which the super- 
stition was carried is shown by a story of a young man, 
who quarrelled with a companion, stabbed him, and threw 
the body into a river. Fifty years passed away, when a 
bone chancing to be fished up, the murderer, then an old 

1 Nam ut in homicidio oceulto sanguis e cadavere, tangente homicida, 
erumpit, quasi cselitus poseens ultioneui. — DernonologiEe Lib. in. c. vi. 



ORDEAL OF BLOOD. 247 

man, happened to touch it, and it streamed with blood. 
Inquiring where it had been found, he recognized the relic 
of his crime, confessed it, and was duly condemned. We 
may trace a more poetic form of this superstition in the 
touching legend of the welcome which the bones of Abe- 
lard gave to Heloise, when, twenty years after his death, 
she was consigned to the same tomb. 

Although there is no allusion to this custom in any of 
the primitive Leges Barbarorum, nor even in the German 
municipal code of the thirteenth century, yet it was judi- 
cially employed there until the sixteenth century, under 
the name of " Bahr-recht." Thus in 1324, Reinward, a 
Canon of Minden, was murdered by a drunken soldier, 
and the crime was brought home to the perpetrator by a 
trial of this kind; 1 and about the year 1600, Bishop Bins- 
feld speaks of its occurrence as an indubitable fact. 2 In 
1592, however, the learned jurisconsult Zanger, after citing 
numerous authorities on both sides, concludes that it is 
not evidence sufficient even to justify the application of 
torture. 3 A variation of it, known as "Scheingehen," was 
practised in the Netherlands and the North, in which the 
hand of the corpse was cut off, and touched by all sus- 
pected persons, with protestations of innocence, and when 
the guilty one came, it was expected to bleed. 4 

The vitality of superstition is well illustrated by the 
hold which this belief still maintains over the credulous 
minds of the uneducated. Even in 1860, the Philadelphia 
journals mention a case in which the relatives of a de- 
ceased person, suspecting foul play, vainly importuned the 
coroner, some weeks after the interment, to have the body 

1 Swartii Chron. Ottbergens. § xlvii. (Paullini Antiq. German. Syn- 
tagma) . 

2 Tract, de Confess. Maleficar. Dub. iv. Conelus. 8, Prelud. 12 (np. 
Rickii § 63). 

3 Zangeri Tract, de Qusestionibus, cap. II. No. 1G0. 

4 Konigswarter, op. cit. p. 183. 



248 THE ORDEAL. 

exhumed, in order that it might be touched by a person 
.whom they regarded as concerned in his death. 1 

We may even include among ordeals the ordinary pur- 
gatorial oath, when administered upon relics of peculiar 
sanctity, to which the superstition of the age attributed 
the power of punishing the perjurer. Thus the monks of 
Abingdon boasted a black cross made from the nails of the 
crucifixion, and said to have been given them by the Em- 
peror Constantine, a false oath on which was sure to cost 
the malefactor his life ; and the worthy chronicler assures 
us that the instances in which its miraculous power had 
been triumphantly exhibited were too innumerable to spe- 
cify. 3 In the Middle Ages, these dangerous relics were 
common, and however we may smile at the simplicity of 
the faith reposed in them, we may rest assured that on 
many occasions they were the means of eliciting confessions, 
which could have been obtained by no devices of legal sub- 
tlety according to modern procedures. 

Though not legally an ordeal, I may refer to a practice 
cognate in its origin as an appeal to Heaven to regulate the 
amount of punishment requisite for the expiation of a crime. 
One or more bands of iron were not infrequently fastened 
round the neck or arm of a murderer, who was banished 
until by pilgrimage and prayer his reconciliation and par- 
don should be manifested by the miraculous loosening of: 
the fetter, showing that soul and body were each released 
from their bonds. 3 A case is related of a Pole thus wander- 

1 Phila. Bulletin, April 19, 1860. 

3 Sancta enim adeo est, ut nullus, juramento super earn praestito, impune 
et sine periculo vitse suae possit affirmare inendacium. — Hist. Monast. Abing. 
Lib. i. c. xii. (Rer. Brit. Script.) 

3 Fratricidas autem et parricidas sive saeerdotum interfectores .... per 
nianum et ventrem ferratos de regno ejiciat ut instar Cain jugi et profugi 
circueant terrain. — Leg. Bracilai Boaemor. (Annal. Saxo, ann. 1039). So 



IRREGULAR ORDEALS. 249 

mg with a circlet tightly clasped to each arm. One fell 
before the intercession of St. Adalbert, the apostle of 
Prussia, but the other retained its hold until the sinner 
came to the shrine of St. Hidulf near Toul. There, joining 
in the worship of the holy monks, the remaining band flew 
off with such force that it bounded against the opposite 
wall, while the pardoned criminal fell fainting to the 
ground, the blood pouring from his liberated arm: a 
miracle gratefully recorded by the spiritual children of the 
saint. 1 Equally melodramatic in its details is a similar 
instance of an inhabitant of Prunay near Orleans, laden 
with three iron bands for fratricide. His weary pilgrimage 
was lightened of two by the intercession of St. Peter at 
Rome, and the third released itself in the most demonstra- 
tive manner, through the merits of St. Bertin and St. Oiner. 3 
If the legend of St. Emeric of Hungary be true, the Pope 
himself did not disdain to prescribe this ordeal to the 
criminal whose miraculous release caused the immediate 
canonization of the saint by a synod in 10 ?3. 3 

The spirit of the age is likewise manifested in an appeal 
to Heaven which terminated a quarrel in the early part of 
the twelfth century between St. Gerald, Archbishop of 
Bracara, and a magnate of his diocese, concerning the 
patronage of a church. Neither being inclined to yield, at 
length the noble prayed that God would decide the cause 
by not permitting the one who was in the wrong to live 
beyond the year, to which St. Gerald assented ; and in six 

also a century earlier for the murder of a chief. — Concil. Spalatens. ann. 
927, can. 7 (Batthyani, I. 331). 

1 De Successoribus S. Hidulfi cap. xviii. (Patrolog. 138, p. 218). A 
similar case attested the sanctity of St. Mansuetus (Vit. S. Mansueti Lib. 
II. c. 17— Martene et Durand. III. 1025). 

2 Folcardi Mirac. S. Bertin. Lib. i. c. 4. 

3 Batthyani, Legg. Eccles. Hung. T. I. p. 413. Cf. also Mirac. S. Swithuni, 
c. ii. § 32.— Mirac. S. Yvonis c. 21 (Patrol. 155, pp. 70, 91). Various other 
instances may be found in Muratori, Antiq. Med. JEvi Diss. 23. Charle- 
magne seems to have considered it a deception to be restrained by law. — 
Car. Mag. cap. i. ann. 789, § lxxvii. 



250 THE ORDEAL. 

months the death of the unhappy noble showed how dan- 
gerous it was to undertake such experiments with a saint. 1 
The various poison ordeals in use among the savage 
tribes of Africa and Madagascar have already been alluded 
to. In India, the same custom is preserved for the un- 
fortunate caste of the Soudras. A specified quantity of 
deadly poison, varying with the activity of the article 
administered, is mixed with thirty times its weight of ghee 
or clarified butter. The patient takes it with his face to 
the North, and if it produces no effect upon him while the 
bystanders can clap their hands five hundred times, he is 
absolved, and antidotes are at once given him. 3 

Having thus described the various forms in which the 
common principle of the ordeal developed itself, there are 
some general considerations connected with it which claim 
brief attention. It was thoroughly and completely a judi- 
cial process, ordained by the law for certain cases, and 
carried out by the tribunals as a regular form of ordinary 
procedure. From the earliest times, the accused who was 
ordered to undergo the trial was compelled to submit to it, 
as to any other decree of court. Thus, by the Salique law, 
a recusant under such circumstances was summoned to the 
royal court ; and if still contumacious, he was outlawed, 
and his property confiscated, as was customary in all cases 
of contempt. 3 The directions of the codes, as we have seen, 

1 Bernald. Vit. S. Gerald, cap. xv. (Baluz. et Mansi I. 134 ) 

2 Ayeen Akbery, II. 497. 

3 That this was a settled practice is shown by its existence in the earliest 
text of the law (Tit. lvi.), as well as in the latest (L. Emend. Tit. ux.). 
It is therefore difficult to understand how Montesquieu could have overlooked 
it, when, in order to establish Iris theory that the original Frankish institu- 
tions admitted no negative proofs, he asserts with regard to the ordeal that 
" Cette preuve etoit une chose de convention, que la loi souffroit, mais qu'elle 
n'ordonnoit pas" (Esp. des Loix, Lib. xxviii. chap. 16) — a statement con- 
tradicted by all the monuments, historical and juridical, of the period. His 
only proof is a somewhat curious custom of the Salien Franks, to which 
reference is made below. 



REGULATIONS OF THE ORDEAL. 251 

are generally precise, and admit of no alternative. 1 Occa- 
sionally, however, a privilege of selection was afforded 
between this and other modes of compurgation, and also 
between the various forms of ordeal. 3 

The circumstances under which its employment was 
ordered varied considerably with the varying legislations 
of races and epochs ; and to enter minutely into the ques- 
tion of the power of the court to decree it, or the right to 
demand it by the appellant or the defendant, would require 
too much space, especially as it has already been discussed 
at some length with regard to the kindred wager of battle. 
Suffice it to say, that the absence of satisfactory testimony, 
rendering the case one not to be solved by human means 
alone, is frequently alluded to as a necessary element f 
and indeed we may almost assert that this was so, even 
when not specifically mentioned, as far as regards the dis- 
cretion of the tribunal to order an appeal to the judgment 
of God. At the same time, a law of King Ethelred seems 
to indicate that the plaintiff might require his adversary 
to submit to it, 4 and numerous examples among those 
cited above authorize the conclusion that an offer on the 

1 Si aufugerit et ordalium vitaverit, solvat plegius compellanti captale 
suum et regi weram suam, vel si qui wita sua dignus erit. — L. Cnuti Saec. 
cap. xxx. — See also cap. xli. 

2 Et eligat accusatus alterutrum quod velit, sive simplex ordalium, sive 
jusjuranduni unius libre in tribus hundredis super xxx. den. — L. Henrici I 
cap. lxv. § 3. By the municipal codes of Germany, a choice between the 
various forms of ordeal was sometimes allowed to the accused who was sen- 
tenced to undergo it. — Jur. Provin. Alaman. cap. xxxvii. §§ 15, 16; Jur. 
Provin. Saxon. Lib. I. Art. 39. 

3 Si certa probatio non fuerit. — L. Sal. Tit. xiv., xvi. (MS. Guelferbyt.) 
The same is found in the Pact. Childeberti et Chlotarii § 5— Decret. Chlo- 
tarii II. ann. 595, § 6.— Capit. Carol- Calvi, ann. 870, cap. 3, 7.— Cnuti 
Constit. de Foresta § 11 : " Sed purgatio ignis nullatenus admittatur nisi 
ubi nuda Veritas nequit aliter investigari." Further instances are hardly 
needed, as the same limitation occurs in many of the laws quoted above. 

4 Et omnis accusator vel qui alium impetit, habeat optionem quid velit, 
sive judicium aque vel fcrri . . . et si fugiet (accusatus) ab ordalio, reddat 
euna plegius wera sua." — Ethelr. Tit. in. c. vi. (Thorpe II. 516.) 



252 THE ORDEAL. 

part of the accused was rarely refused, even when there 
was strong evidence against him, 1 though this laxity of 
practice was occasionally stoutly objected to. 2 When the 
custom was declining, indeed, a disposition existed to 
require the assent of both parties before the tribunal would 
allow a case to be thus decided. 3 In civil cases, we may 
assume that absence of testimony, or the consent of both 
parties, was requisite to its employment. 4 The comfort 
which the system must have afforded to indolent judges 
in doubtful cases is well exhibited by a rule in various 
ancient codes, by which a man suspected of crime, even 

1 Thus in the Icelandic code — " Quodsi reus ferrum candens se gerere velle 
obtulerit, hoc minime rejiciatur." — Gragas, Sect vi. c. 33, So in the laws 
of Bruges in 1190 (§ 31), we find the accused allowed to choose between the 
red-hot iron and a regular inquest — " Qui de palingis inpetitur, si ad judicium 
ardentis ferri venire noluerit, veritatem comitis qualem melius super hoc 
inveniri poterit, accipiet" (Warnkonig, Hist, de la Fland. IV. 372; — show- 
ing that it was considered the most absolute of testimony. And in a consti- 
tution of Frederic Barbarossa " Si miles rusticum de violata pace pulsaverit 
. . . . de duobus unum rusticus eligat, an divino aut humano judicio inno- 
centiam suam ostendat." — Feudor. Lib n. Tit. xxvii. § 3. 

s Thus an anonymous ecclesiastic, in an epistle quoted by Juretus (Ob- 
servat. in Ivon. Carnot. Epist. 74) — " Simoniaci non admittuntur ad judi- 
cium, si probabiles persona?, etiam laicorum, vel feminarum, pretium se ab 
eis recipisse testantur j nee aliud est pro manifestis venire ad judicium nisi 
tentare Dominum." 

3 Duelluin vel judicium candentis ferri, vel aquse ferventis, vel aliacanoni- 
bus vel legibus improbata, nullomodo in curia Montispessulani rata sunt, nisi 
utraque pars convenerit. — Statut. Montispess. ann. 1204 (Du Cange). 

4 Si accolis de neutrius jure constat, adeoque hac in re testimonium dicere 
non queant, turn judicio aquae res decidatur. — Jur. Provin. Alaman. cap. 
eclxxviii. § 5. — Poterit enim alteruter eorum petere probationem per aquam 
(wasser urteyll) nee Dominus nee adversarius detrectare possit ; sed non, nisi 
quum per testes probatio fieri nequit. — Jur. Feud. Alaman. cap. Ixxvii. § 2. 

" Aut Veritas reperiatur de hoc per aquaticum Dei judicium. Tamen judi- 
cium Dei non est licitum adhiberi per ullam eausam, nisi cujus Veritas per 
justitiam non potest aliter reperiri, hoc terminabitur judicio Dei." — Jur. 
Feud. Saxon. § 100 (Senckenberg. Corp. Jur. Feud. German, p. 249). — So, 
also, in a later text, "judicium Domini fervida aqua vel ferro non licet in 
causa aliqua experiri, nisi in qua medis aliis non poterit Veritas indagari." 
—Cap. xxiv. § 19. (Ibid. p. 337.) * 



PLAINTIFF SUBJECTED TO THE ORDEAL. 253 

though no accuser came forward, was thrown into prison 
and kept there until he could prove his innocence by the 
ordeal of water. 1 

We have seen above occasional instances in which the 
accuser or plaintiff offered to substantiate his veracity by 
an appeal to the ordeal. This was an established rule with 
regard to the wager of battle, but not as respects the other 
forms of the judgment of God, which were regarded rather 
as means of defence than of attack. I have met with but 
one instance of general instructions for their employment 
by the accusing party. Archbishop Hincmar directs that 
cases of complaint against priests for dissolute life shall 
be supported by seven witnesses, of whom one must sub- 
mit to the ordeal to prove the truth of his companions' 
oaths, as a wholesome check upon perjury and subornation. 2 
With a similar object, the same prelate likewise enjoins it 
on compurgators chosen by the accused, on his failing to 
obtain the support of those who had been selected for him 
by his judge. 3 Allied to this was a rule for its emploj^- 
ment which was extensively adopted, allowing the accused 
the privilege of compurgation with conjurators in certain 
cases, only requiring him to submit to the ordeal on his 
failing to procure the requisite number of sponsors. Thus, 
in 794, a certain Bishop Peter, who was condemned by the 
Sj T nod of Frankfort to clear himself, with two or three 

1 Etablissements de Normandie, Tit. de Prflson (Ed. Marnier). Precisely 
similar to this was a regulation in the early Bohemian laws. — Bracilai 
Leges. (Patrol. 151, 1258-9.) And an almost identical provision is found in 
the Anglo-Saxon jurisprudence. — L. Cnuti Ssec. cap. xxxv. — L. Henric. I. 
cap. lxi. § 5. — See, also, Assises de Jerusalem, Baisse Court, eclix. 

2 El, exceptis accusatoribus, septera sint testes idonei, qui inde verita- 
tem per sacramentum dicant, ex quibus sex jurent, et Septimus, si conditio 
vel qualitas personae permittit, ad judicium exeat quod illi ex veritate inde 
per sacramentum dixerunt ; quia multi jam deprehensi apud nos hahentur, 
quoniam pretio conducti se perjuraverunt. — Hincmari Capit. Synod, ann. 
852, ii. xxi. 

3 Hincmari Epist. xxxiv. 

22 



254 THE ORDEAL. 

conjurators, of the suspicion of complicity in a conspiracy 
against Charlemagne, being unable to obtain them, one of 
his vassals offered to pass through the ordeal in his behalf, 
and on his success the Bishop was reinstated. 1 That this 
was strictly in accordance with usage is shown by a very 
early text of the Salique Law, 3 as well as by a similar pro- 
vision in the Bipuarian code. 3 Among the Anglo-Saxons 
it likewise obtained, from the time of the earliest allusion 
to the ordeal occurring in their jurisprudence, down to the 
period of the Conquest. 4 Somewhat similar in tendency 
was a regulation of Frederic Barbarossa, by which a slave 
suspected of theft was exposed to the red-hot iron, unless 
his master would release him by an oath. 5 Occasionally 
it was also resorted to when the accused was outsworn, 
after having endeavored to defend himself by his oath or 
by conjurators. Popular belief might give to the accuser 
a larger number of men willing to associate themselves in 
the oath of accusation than the defendant could find to 
join him in rebutting it, and yet his guilt might not as yet 
be clear. In such cases, the ordeal was a most convenient 
resort. 6 

These regulations give to the ordeal decidedly the aspect 
of punishment, as it was thus inflicted on those whose guilt 
was so generally believed that they could find none to 
stand up with them at the altar as partakers in their oath 

1 Capit. Car. Mag. Ann. 794, § 7. 

2 Se juratores non potuerit invenire, aut ad ineum ambulat aut, etc. — 
MS. Guelferbyt. Tit. xiv. 

3 Quod si ... . juratores invenire non potuerit, ad ignem seu ad sortem 
se excusare studeat. — L. Ripuar. Tit. xxxi. § 5. 

4 Dooms of Edward the Elder, cap. iii. So also in the laws of William the 
Conqueror, Tit. i. cap. xiv. — "Si sen escundira sei duzime main. E si il 
auer nes pot, si sen defende par juise." The collection known by the name 
of Henry I. has a similar provision, cap. lxvi. § 3. 

5 Si servus aliquis culpatus non in furto fuerit deprehensus, sequente die 
expurgabit se judicio igniti ferri, vel dominus juramentum pro eo prsestabit. 
— Radevic. de Reb. Frid. Lib. I. cap. xxvi. 

6 Concil. Tribur. ann. 895, c. xxii. 



USED AS A PUNISHMENT. 255 

of denial ; and this is not the only circumstance which 
leads us to believe that it was frequently so regarded. The 
graduated scale of single and triple ordeals for offences of 
different magnitudes is so totally at variance with the theory 
of miraculous interposition to protect innocence and punish 
guilt, that we can only look upon it as a mode of inflicting 
graduated punishments in doubtful cases, thus holding up 
a certain penalty in terrorem over those who would other- 
wise hope to escape by the secrecy of their crime — no doubt 
with a comforting conviction, like that of De Montfort's 
priestly adviser at the sack of Beziers, that Heaven would 
know its own. This same principle is visible in a provision 
of the charter of Loudun, granted by Louis-le-Gros in 1128, 
by which an assault committed outside of the liberties of 
the commune could be disproved by a simple sacramental 
oath ; but if within the limits of the commune, the accused 
was obliged to undergo the ordeal. 1 Further evidence is 
afforded by the principle, interwoven in various codes, by 
which a first crime was defensible by conjurators, or other 
means, while the " tiht-bysig" man, the "homo infamatus," 
one of evil repute, whose character had been previously 
compromised, was denied this privilege, and was forced at 
once to the hot iron or the water. Thus, among the Anglo- 
Saxons, in the earliest allusion to the ordeal by Edward the 
Elder, it is provided that perjured persons, or those who had 
once been convicted, should not be deemed thereafter oath- 
worthy, but should be hurried to the ordeal ; a regulation 
repeated with some variations in the laws of Ethelred, Cnut, 
and Henry I. 9 The Carlovingian legislation establishes a 
similar principle, 3 and the Council of Tribur, in 895, shows 



1 Chart. Commun. Laudun. (Baluz. et Mansi IV. p. 39.) 

2 Ut deinceps non sint digni juramento sed ordalio. — Legg. Edwardi 
cap. iii. ; Ethelredi cap. i. § 1 ; Cnuti Ssecul. cap. xxii., xxx. ; Henrici I. 
cap. lxv. § 3. 

3 Capit. Car. Mag. i. ann. 809, cap. xxviii — Capit. Ludov. Pii. i. ann. 
819. 



256 THE ORDEAL. 

it to be still in force. 1 Three centuries later, the legislation 
of Flanders shows the same tendency, the code granted to 
Bruges in 1190 providing that a first accusation of theft 
should be decided by witnesses, while a second was to be met 
by the cold-water ordeal. 3 In the German municipal law of 
the thirteenth century, the same principle is observed. An 
officer of the mint issuing false money was permitted the 
first time to swear to his ignorance, but on a second offence 
he had to submit to the ordeal ; and it was similarly en- 
joined on those who had become infamous on account of a 
previous conviction of theft. 3 The contemporary jurispru- 
dence of Spain has a somewhat similar provision, by which 
a woman accused of homicide could not be exposed to the 
ordeal, unless she could be proved utterly abandoned, for 
which a curious standard was requisite,* and this is the 
more remarkable, since by the same code a procuress was 
forced at once to the red-hot iron to prove her innocence. 
In the legislation of Charlemagne, there is a curious pro- 
vision, by which a man convicted seven times of theft was 
no longer allowed to escape on payment of a fine, but was 
forced to undergo the ordeal of fire. If he succumbed, he 
was put to death ; if he escaped unhurt, he was not dis- 

1 Nobilis homo vel ingenuus .... cum duodecim ingenuis se expurget. 

Si antea deprehensus fuerit in furto vel perjurio aut falso testimonio 

ferventi aqua aut candenti ferro se expurget. — Burchardi Deeret. Lib. xvi. 
cap. 19. 

2 Keure de la Chatellenie de Bruges, § 28. Quodsi postmodum de furto 
inpetitus venerit, purgabit se judicio frigidse aquas in suo corpore tantum. — 
(Warnkonig, Hist, de la Fland. IV. 371.) 

3 Jur. Provin. Alaman. cap. clxxxvi. §§ 4, 6, 7 ; cap. ccclxxiv. ; Jur. 
Provin. Saxon. Lib. i. Art. 39. So, also, in the fourteenth century, the 
" vir famae integrae" cleared himself "juramento super reliquiis sanctorum 
praestito," while, after a first offence " purgare se eum debere portatione 
ferri candentis, vel immissione brachii usque ad cubitum in aquam ferven- 
tem, vel tandem certamine singulari, pronunciatur." — Richstich Landrecht, 
cap. Hi. 

4 Si non fuere provada por mala, que aya yazido con cinco omes. — Fuero 
de Baeca (Villadiego, Fuero Juzgo, fol. 317 a). 



USED AS A TORTURE. 257 

charged as innocent, but his lord was allowed to enter bail 
for his future good behavior 1 — a mode at once of administer- 
ing punishment and of ascertaining whether his death would 
be agreeable to Heaven. When we thus regard it as a 
penalty on those who by misconduct had forfeited the con- 
fidence of their fellow-men, the system loses part of its 
absurdity, in proportion as it departs from the principle 
under which it was established. 

There is also another aspect in which it is probable 
that the ordeal was viewed by those whose common sense 
must have shrunk from it simply as an appeal to the judg- 
ment of God. There can be little doubt that it was fre- 
quently found of material use in extorting confession or 
unwilling testimony. By the early codes, as in the primi- 
tive Greek and Roman law, torture could be applied only 
to slaves, and the ordeal was a legalized torture, applied 
under circumstances peculiarly provocative of truth. 3 In 
those ages of faith, the professing Christian, conscious of 
guilt, must indeed have been hardened, who could undergo 
the most awful rites of his religion, pledging his salvation 
on his innocence, and knowing under such circumstances 
that the direct intervention of Heaven could alone save 
him from having his hand boiled to rags, 3 after which he 
was to meet the full punishment of his crime, and perhaps 
in addition lose a member for the perjury committed. With 

1 Capit. Car. Mag. in. Ann. 813, cap. 46. 

2 The close relationship between some forms of the ordeal and torture is 
exemplified in the regulations which frequently enabled the freeman to clear 
himself of accusations by compurgation, while the slave was required to 
undergo the ordeal. See, for instance, Concil. Mogunt. ann. 847, can. xxiv. 

3 The severity of the ordeal, when the sufferer had no friends among the 
operators to save him, may be deduced from the description of a hand when 
released from its three days' tying up after its plunge into hot water ; " in- 
flatam admodum et excoriatam sanieque jam carne putrida effluentem dex- 
teram invitus ostendit." (Du Cange, s. v. Aqtice Few. Judicium.) In this 
case, the sufferer was the adversary of an abbey, of which the monks perhaps 
had the boiling of the kettle. 

22* 



25S THE ORDEAL. 

such a prospect, all motives would conspire to lead Mm to 
a prompt and frank acknowledgment in the early stages of 
the proceedings against him. These views are strength- 
ened by the fact that when, in the thirteenth centu^, the 
judicial use of torture, as a means of obtaining testimony 
and confession, was becoming systematized and generally 
employed, the ordeal was falling into desuetude and rapidly 
disappearing. The latter had fulfilled its mission, and the 
former was a substitute better fitted for an age which 
reasoned more, believed less, and at the same time was 
quite as arbitrary and violent as the preceding. A further 
confirmation of this supposition is afforded by the coinci- 
dence that the only primitive jurisprudence which excluded 
the ordeal — that of the Wisigoths — was likewise the only 
one which habitually permitted the use of torture, 1 the 
only reference to the ordeal in their jurisprudence being a 
provision which directs its employment as a preliminary to 
the more regular forms of torture. 

Some of the ordeals, however, such as that of the Eucha- 
rist, of bread and cheese, and touching the dead body, do 
not come within this class, but they addressed themselves 
powerfully to the conscience and imagination of the ac- 

1 L. Wisig. Lib. vi. Tit. i. § 3.— An epistle attributed both to Stephen V. 
and Sylvester II. shows that the ordeal was evidently regarded as a torture 
by those whose enlightenment led them to condemn the popular faith in it 
as a superstition: " Ferri candentis vel aquae ferventis examinatione con- 
fessionem extorqueri a quolibet, sacri non censuerunt canones, et quod sanc- 
torum Patrum documento sancitum non est, superstitiosa adinventione non 
est praesumendum. " — Ivon. Carnot. Epist. 74. — Can. Consuluisti, Caus. II. 
q. 5. That the ordeal was practically regarded as a torture, giving addi- 
tional weight to testimony, is shown by the terms of an offer made to undergo 
it by a priest named Adalger when in the Council of St. Baseul he confessed 
the part he had taken with Arnoul, Archbishop of Rheims, in Charles of 
Lorraine's resistance to the usurpation of Hugh Capet — " Haec si quisquam 
vestrum aliter esse putat, meque indignem cui credatur, credat igni, ferventi 
aquae, candenti ferro ; faciant fidem tormenta quibus non sufficiant mea 
verba." (Concil. Basol. cap. xi.) It is observable that he omits the cold- 
water ordeal, as not being a torture. Rainer, private secretary of Arnoul, 
offered to prove his statement by giving up a slave to walk the burning 
ploughshares in evidence of his truth. (Ibid. cap. xxx.) 



EFFECTS ON TTTE IMAGINATION. 259 

cused, whose callous fortitude no doubt often gave way 
under the trial. 1 In our own country, and almost within 
our own time, the latter ordeal was revived in one instance 
with this object, and the result did not disappoint the 
expectations of those who undertook it. In the case of 
People vs. Johnson, tried in New York in 1824, the sus- 
pected murderer was led from his cell to the hospital where 
lay the body of the victim, which he was required to touch. 
Dissimulation which had been before unshaken failed him 
at the awful moment ; his overstrung nerves gave way, 
and a confession was faltered forth. The proceeding was 
sustained by court, and a subsequent attempt at retraction 
was overruled. 3 The powerful influence of such motives 
is shown in a custom which, as recently as 1815, was still 
employed at Mandeure, near Montbelliarcl, and which is 
perhaps the latest European instance of the legalized ap- 
plication of an ordeal. When a theft had been committed, 
the inhabitants were summoned to assemble after vespers 
on Sunday at the place of judgment. There the mayor 
summoned the guilty person to make restitution and live 
in isolation for six months. If this appeal proved fruitless, 
recourse was had to the trial of the staff, in which two 
magistrates held aloft a piece of wood, under which every 
one was bound to pass. No instance was on record in 
which the culprit dared to do this, and he was always left 
alone. 3 

There are two peculiarities of the system, perhaps worth 
alluding to, which may be thought to militate against the 
theory of its use as a torture. The one is the permission 

1 As regards the ordeal of bread, Boecacio's story of Calendrino (Giorn. 
vin. Nov. 6), which turns upon the mixing of a quantity of aloes with the 
food intended for the corsnccd, perhaps throws some light on the miracles 
reported so freely by the honest monkish chroniclers, and on the practices 
by which the whole system was rendered subservient to the interests of those 
intrusted with its administration. 

2 Wharton and Stille's Med. Jurisp., 2d Ed., 1860. 
s Mich el et, Origines des Loix, p. 349. 



260 THE ORDEAL. 

sometimes accorded to put forward substitutes or cham- 
pions, who dared the fire or water as freely as the field of 
single combat. Of this custom so many examples have 
already been given incidentally, that further instances 
would be superfluous, and I would only add that it is no- 
where permitted as a general rule by any code, except in 
the case already quoted of the ordeal of the cross, where it 
was a privilege accorded to the old or infirm, and probably 
only as a local custom. That a person rich enough to 
purchase a substitute, or powerful enough to force some 
unhappy follower or vassal to take his place, should obtain 
a favor not generally allowed, is a matter of course in the 
formative periods of society; accordingly, it will be ob- 
served that all the instances of the kind mentioned above 
relate to those whose dignity or station may well have 
rendered them exceptional. 

This is further rendered probable by the fact that ex- 
emption from the ordeal was in some places the privilege 
of freemen, who were entitled to rebut accusations by the 
safer mode of procuring a definite number of compurgators 
to take with them the purgatorial oath. We find this 
alluded to as early as the seventh century, in the legis- 
lation of the Ripuarian Franks, among whom the ordeal 
was reserved for strangers and slaves. In 895 .the Council 
of Tribur draws the line with a distinctness which shows 
that the custom was well established at that period. 1 I 

1 It permits the "hobilis homo vel ingenuus" to rebut an accusation with 
twelve compurgators, but if he had previously been convicted of crime — 
"sicut qui ingenuus non est, ferventi aqua aut candenti ferro se expurget." 
(Burchardi Decret. Lib. xvi. cap. 19.) 

The law of William the Conqueror (Tit. n. c. 3.— Thorpe, I. 488), by which 
the duel was reserved for the Norman, and the vulgar ordeal for the Saxon, 
might be supposed to arise from a similar distinction. In reality, however, 
it was only preserving the ancestral customs of the races, giving to the 
defendant the privilege of his own law. The duel was unknown to the 
Anglo-Saxons, who habitually employed the ordeal, while the Normans, pre- 
vious to the Conquest, according to Houard, who is good authority (Anc. 
Loix Franc. I. 221-222), only appealed to the sword. 



ALL CLASSES SUBJECTED TO IT. 261 

have already quoted (p. 220) a document of 1051 giving 
a similar regulation in Alsace, while in 1192 the burghers 
of Ghent inserted it in a charter which they extorted from 
the Countess Matilda, widow of Philip I. 1 So when, in 
1085, the Emperor Henry TV. proclaimed the Truce of God, 
at the Assembly of Mainz, he directed that those accused 
of disregarding it should, if freemen, clear themselves with 
twelve approved compurgators, while serfs and villeins 
were forced to undergo the cold-water ordeal. 3 

The other objection to our hypothesis is that to some 
extent the common ordeal was a plebeian process, while 
the patricians arrogated to themselves the wager of battle. 
This distinction, however, hardly existed before the rise 
of feudalism gave all privileges to those who were strong 
enough to seize them, and even then it was by no means 
universal. We have already seen that although in the 
early part of the eleventh century the Emperor Henry II. 
undoubtedly promulgated such a rule, yet that Glanville, a 
hundred and fifty years later, considers the red-hot iron as 
noble, and that in the thirteenth century the feudal law of 
Germany prescribes the wasser-urteyll for territorial dis- 
putes between gentlemen. In the earlier codes the distinc- 
tion is unknown, so that we are justified in assuming that 
no general principles can be deduced from a regulation so 
late in its appearance and so uncertain in its application. 

The degree of confidence really inspired by the results 
of the ordeal is a somewhat curious subject of speculation, 

1 Si cui iinputetur et convictus non fuerit, liber per duodecim liberos se 
purgabit, non liber judicio aquae frigidae. — Keure de Gand, §§ 7, 8, 12. 
(Warnkonig, Hist, de la Fland. II. 228.) We see that it is here directed to 
be used merely in default of other testimony, before liberating the accused 
who could not be convicted. 

2 Cuicunque vero violatio hujus pacis imposita fuerit, et ipse negaverit, si 
ingenuus est aut liber, duodecim probatis se expurget. Si servus, tarn lito 
quarn ministerialis, judicio aquae frigidae. — Henrici IV. Constat, iv. (Pa- 
trolog. 151, 1135.) 



262 THE ORDEAL. 

and one on which definite opinions are not easily reached. 
Judicially, the trial was conclusive; the man who had duly 
sunk under water, walked unharmed among the burning 
shares, or withdrawn an unblistered hand from a caldron 
of legal temperature, stood forth among his fellows as 
innocent. So, even now, the verdict of twelve fools or 
knaves in a jury-box may discharge a criminal, against 
the plainest dictates of common sense ; but in neither case 
would the sentiments of the community be changed by the 
result. The reverential feelings which alone could impart 
faith in the system seem scarcely compatible with the prac- 
tice of compounding for ordeals, by which a man was per- 
mitted to buy himself off, by settling the matter with his 
accuser. This mode of adjustment was not extensively 
introduced, but it nevertheless existed among the Anglo- 
Saxons, 1 while among the Franks it was a settled custom, 
permitted by all the texts of the Salique law, from the 
earliest to the latest. 2 Charlemagne, in the earlier portion 
of his reign, does not seem to have entertained much re- 
spect for the judgment of God, when he prescribed the 
administration of the ordeal for trifling affairs only, cases 
of magnitude being reserved for the regular investigation 

1 Dooms of iEthelstan, i. cap. 21. 

2 First Text, Tit. liii. and L. Emend. Tit. lv. — A person condemned by 
the court to undergo the ordeal could, by a transaction with the aggrieved 
party, purchase the privilege of clearing himself by canonical compurgation, 
and thus escape the severer trial. He was bound to pay his accuser only a 
portion of the fine which he would incur if proved guilty — a portion varying 
with different offences from one-fourth to one-sixth of the wehr-gild. The 
interests of the tribunal were guarded by a clause which compelled him to 
pay to the grafio, or judge, the full fredum, or public fine, if his conscience 
impelled him to submit to an arrangement for more than the legal per- 
centage. It is on this custom that Montesquieu relies to support his theory 
of the absence of negative proofs in the Frankish jurisprudence. The fallacy 
of the argument is further shown by the existence of a similar privilege in 
the Anglo-Saxon laws, with which the learned jurist endeavors to establish 
a special contrast. 



CONFIDENCE REPOSED IN IT. 263 

of the law. 1 Thirty years later, the public mind appears 
afflicted with the same doubts, for we find the monarch 
endeavoring to enforce confidence in the system by his 
commands. 2 How far he succeeded in this difficult attempt, 
we have no means of ascertaining ; but a rule of English 
law, four hundred years later, during the expiring struggles 
of the practice, would show that it was regarded as by no 
means conclusive, when a malefactor who had established 
his innocence by hot water or iron obtained thereby only 
a commutation of punishment, and was forced to leave the 
kingdom in perpetual exile. 3 St. Ivo of Chartres, though 
he had no scruple in recommending and enjoining the 
ordeal, and, on one occasion at least, pronounced its de- 
cisions as beyond appeal, yet he has placed on record his 
conviction of its insufficiency, and his experience that the 
mysterious judgment of God not infrequently allowed in 
this manner the guilty to escape and the innocent to be 
punished. 4 There is also evidence that the manifest in- 
justice of the results obtained not infrequently tried the 
faith of believers to a degree which required the most 
ingenious sophistry for an explanation. When, in 112T, the 
sacrilegious murder of Charles the Good, Earl of Flanders, 

1 Quod si accusatus contendere voluerit de ipso perjurio stent ad crucem. 
. . . Hoc vero de minoribus rebus. De majoribus vero, aut de statu inge- 
nuitatis, secundum legem custodiant. — Capit. Car. Mag. ann. 779, § 10. 
That this was respected as law in force, nearly a hundred years later, is 
shown by its being included in the collection of Capitularies by Benedict the 
Levite. (Lib. v. cap. 196.) 

3 Ut omnes judicio Dei credant absque dubitatione. — Capit. Car. Mag. i. 
ann. 809, § 20. 

Constitutio quidem talis fuit, quod quamvis aliquis se purgaret judicio 
aquae vel ignis, hie nihilominus regnum abjuraret. — Bracton Lib. ill. Tract 
ii. cap. 16, § 3. 

Pro quibus aliquem condemnare nee usus majorum nee ulla legum con- 
cedit auctoritas. . . . Simili modo, cauterium militis nullum tibi certum 
praebet argumentum, cum per examinationem ferri candentis occulto Dei 
judicio multos videamus nocentes liberatos, multos innocentes saepe damna- 
tos. — Ivon. Carnot. Epist. ccv. 



264 THE ORDEAL. 

sent a thrill of horror throughout Europe, Lambert of Re- 
denburg, whose participation in the crime was notorious, 
succeeded in clearing himself by the hot iron. Shortly 
afterwards he undertook the siege of Ostbourg, which he 
prosecuted with great cruelty, when he was killed in a sally 
of the besieged. The pious Galbert assumes that Lambert, 
notwithstanding his guilt, escaped at the ordeal in conse- 
quence of his humility and repentance, and philosophically 
adds : " Thus it is that in battle the unjust man is killed, 
although in the ordeal of water or of fire he may escape, if 
truly repentant." 1 The same doctrine was enunciated under 
John Cantacuzenes, in the middle of the fourteenth century, 
by a Bishop of Didymoteichus in Thrace. A frail fair one 
being violently suspected by her husband, the ordeal of hot 
iron was demanded by him. In this strait she applied to 
the good Bishop, and he, being convinced of her repentance 
and intention to sin no more, assured her that in such a 
frame of mind she might safely venture on the trial, and 
she accordingly carried the glowing bar triumphantly twice 
around the Bishop's chair, to the entire satisfaction of her 
lord and master. 2 While repentance thus enabled the crim- 
inal to escape, on the other hand the innocent were some- 
times held to be liable to conviction, on account of previous 
misdeeds. A striking instance of the vague notions cur- 
rent is afforded in the middle of the eleventh century by a 
case related by Othlonus, in which a man accused of horse- 
stealing was tried by the cold-water ordeal and found guilty. 
Knowing his own innocence, he appealed to the surround- 
ing monks, and was told that it must be in consequence of 
some other sin not properly redeemed by penance. As he 
had confessed and received absolution before the trial, he 
denied this, till one of them pointed out that in place of 
allowing his beard to grow, as was meet for a layman, he 
had impiously carried the smooth chin reserved for ecclesi- 

1 Vit. Carol. Comit. Flandren. cap. xx. 

3 Collin de Plancy, op. cit. s. v. Fer Chaud. 



CONFIDENCE REPOSED IN IT. 265 

astics. Confessing his guilt, promising due penance, and 
vowing never to touch his beard with a razor again, he was 
conducted a second time to the water, and being now free 
from all unrepented sin, he was triumphantly acquitted. 1 

In fact, as the result depended mostly upon those who 
administered the ordeal, it conferred an irresponsible 
power to release or to condemn, and it would be expecting 
too much of human nature to suppose that men did not 
yield frequently to the temptation to abuse that power. 
The injustice thus practised must often have shaken the 
most robust faith, and this cause of disbelief would receive 
additional strength from the fact that the result itself was 
not seldom in doubt, victory being equally claimed by both 
parties. Of this we have already seen examples in the 
affairs of the lance of St. Andrew and of the Archbishop of 
Milan, and somewhat similar is an incident recorded by 
the Bollandists in the life of St. Swithin, in which, by mi- 
raculous interposition, the opposing parties beheld entirely 
different results from an appeal to the red-hot iron. 2 

Efforts of course were made from time to time to preserve 
the purity of the appeal, and to secure impartiality in its 
application. Clotair II., in 595, directs that three chosen 
persons shall attend on each side to prevent collusion; 3 
and among the Anglo-Saxons, some four hundred years 
later, Ethelred enjoins the presence of the prosecutor under 
penalty of loss of suit and fine of twenty ores, apparently 

1 Othlon. Narrat de Mirac. quod nuper accidit, &c. (Patrol. 146, 243-4.) 
Lapsing again, however, into the sin of shaving, upon a quibhle as to the 
kind of instrument employed, the anger of Heaven manifested itself by 
allowing him to fall into the hands of an enemy who put out his eyes. 

3 Enimvero mirum fuit ultra modum, quod fautores arsuram et infla- 
tionem conspiciebant; criminatores ita sanam ejus videbant palmam, quasi 
penitus fulvum non tetigisset ferrum. — Mirac. S. Swithuni c. ii. § 37. In 
this case, the patient was a slave, whose master had vowed to give him to 
the church in case he escaped. 

3 Ad utramque partem sint ternas personas electas, ne conludius fieri 
possit. — Decret. Chlotharii II. cap. vn. 

23 



266 THE ORDEAL. 

for the same object, as well as to give authenticity to the 
decision. 1 So in Hungary, the laws of St. Ladislas, in 1092, 
direct that three sworn witnesses shall be present to attest 
the innocence or guilt of the accused as demonstrated by 
the result. 3 A law adopted by the Scottish Parliament 
under William the Lion, in the second half of the twelfth 
century, shows that corruption was not uncommon, by for- 
bidding those concerned in the administration of ordeals 
from taking any bribes to divert the course of justice, 3 and 
a further precaution was taken by prohibiting the Barons 
from adjudging the ordeal without the intervention of the 
sheriff to see that law and justice were observed. 4 In the 
trial by red-hot iron, a widely prevailing custom ordered 
that for three days previous the hand should be wrapped up 
to guard against its being fortified, and among the Greeks 
a careful provision was made that the hand should be tho- 
roughly washed and allowed to touch nothing afterwards, 
lest there should be an opportunity of anointing it with 
unguents which would enable it to resist the fire. 5 These 
regulations show that evils were recognized, but we may rea- 
sonably hesitate to believe that the remedies were effectual. 

The Church was not a unit in its relations to the ordeal. 
During the earlier periods, indeed, no question seems to 
have been entertained as to the propriety of the practice ; 
it was sanctioned by councils, and administered by ecclesi- 
astics, and, as we have seen, numerous formulas of prayers 
and adjurations were authoritatively provided for all the 

1 Ethelred, in. § 4. 

2 Synod. Zabolcs, can. 27 (Batthyani, Legg. Eceles. Hung. T. I. p. 439). 

3 Et quod propter factum judicium aquae, vel ferri, vel duelli, aut cujus- 
cunque modi judicii, nullam sument aut capient pecuniam, aut aliud bene- 
ficium, pro quo effectus justitiae maneat imperfectus. — Statut. Wilhelmi Regis 
cap. 7, § 3. (Skene II. 4.) 

4 Nulli Baroni liceat tenere curiam aquas vel ferri, nisi Vicecomes vel ejus 
servientes intersint, ad videndum quod lex et justitia fiat. — Ibid. cap. 16. 

5 Du Cange, s. v. Ferrtim candens. 



ECCLESIASTICAL OPPOSITION. 26*7 

different varieties in nse. This unanimity was, however, 
soon disturbed. At the commencement of the sixth cen- 
tury, A vitus, Bishop of Yienne, remonstrated freely with 
Gundobald on account of the prominence given to the 
battle-ordeal in the Burgundian code ; and some three cen- 
turies later, St. Agobard, Archbishop of Lyons, attacked 
the whole system in two powerful treatises, which in many 
points display a breadth of view and clearness of reasoning 
far in advance of his age. 1 Soon after, Leo IV., about the 
middle of the ninth century, condemned it in a letter to 
the English bishops ; some thirty years later, Stephen Y. 
repeated the disapproval ; in the tenth century, S}dvester II. 
opposed it ; and succeeding pontiffs, such as Alexander II. 
and Alexander III., in vain protested against it. In this, 
the chiefs of the Church placed themselves in opposition to 
their subordinates. No ordeal could be conducted without 
priestly aid, and the frequency of its employment, which 
has been seen above, shows how little the Papal exhorta- 
tions were respected by the ministers of the Church. Nor 
were they contented with simple disregard ; defenders were 
not wanting to pronounce the ordeal in accordance with the 
Divine law, and it was repeatedly sanctioned by provincial 
synods and councils. In 853, the Synod of Soissons ordered 
Burchard, Bishop of Chartres, to prove his fitness for the 
episcopal office by undergoing it. 3 Hincmar, Archbishop 
of Rheims, lent to it all the influence of his commanding 
talents and position; the Council of Mainz in 888, and 
that of Tribur near Mainz in 895, recommended it ; that 
of Tours in 925 ordered it for the decision of a quarrel 
between two priests respecting certain tithes ; 3 the synod 
of the province of Mainz in 1028 authorized the hot iron 
in a case of murder; 4 that of Elne in 1065 recognized it; 

1 The "Liber adversus Legem Gundobadi" and "Liber contra Judicium 
Dei." 

2 Capit. Carol. Calvi Tit. xi. c. iii. (Baluze.) 

3 Concil. Turon. ann. 925 (Mart'ene et Durand. T. IV. pp. 72-3). 

4 Annalist. Saxo. ann. 1028. 



268 THE ORDEAL. 

that of Auch in 1068 confirmed its nse; Burckhart, Bishop 
of Worms, whose collection of canons is still an authority, 
in 1023 assisted at the Council of Selingenstadt, which 
directed its employment. The Synod of Gran, in 1099, 
decided that the ordeal of hot iron might be administered 
during Lent, except in cases involving the shedding of 
blood. 1 In the twelfth century, we find St. Bernard alluding 
approvingly to the conviction of heretics by the cold-water 
process, 3 of which Guibert de Nogent gives us an instance 
wherein he aided the Bishop of Soissons in administering 
it to two backsliders with complete success. 3 Prelates 
were everywhere found granting charters containing the 
privilege of conducting trials in this manner. It was some- 
times specially appropriated to members of the church, 
who claimed it, under the name of " Lex Monachorum," as 
a class privilege exempting them from being parties to 
the more barbarous and uncanonical wager of battle; 4 and 
in 1061 a charter of John, Bishop of Avranches, to the 
Abbot of Mont S. Michel, alludes to hot water and iron as 
the only mode of trying priests charged with offences of 
magnitude. 5 There was therefore but slender ground for 
so eminent a canonist as St. Ivo of Chartres, about the 
same period, to insist that ecclesiastics enjoyed immunity 
from it, while admitting that the incredulity of mankind 
sometimes required an appeal to the decision of Heaven, 
even though such appeals were not commanded by the 

1 Batthyani, Legg. Eccles. Hung. II. 126. 

2 Examinati judicio aquae mendaces inventi sunt .... aqua eos non sus- 
cipiente. — In Cantica, Sermo 66. (Ameilhon.) 

3 De Vita sua, Lib. in. cap. 18. 

4 Theodericus Abbas Vice-Comitem adiit paratus aut calidi ferri judicio 
secundum legem monachorum per suum hominem probare, aut scuto et 
baculo secundum legem secularium deffendere. — Annal. Benedict. L. 57, No. 
74, ann. 1036 (ap. Houard, Loix Anc. Fran. I. 267). 

5 Judicium ferri igniti et aquae ferventis Abrincis portaretur, si clerici 
lapsi in culpam degradations forte invenirentur. — Chart. Joan. Abrinc. 
(Patrolog. 147, 266.) 



INFLUENCE OF THE CHURCH. 209 

Divine law. 1 Pope Calixtus II. himself, about the same 
period, gave his sanction to the system, in the Council of 
Eheims, in 1119- 8 About the same period, the learned 
priest Honorius of Autun specifies the benediction of the 
iron and water of the ordeal as part of the legitimate func- 
tions of his order; 3 and even Gratian, in 1151, hesitates to 
condemn the whole system, preferring to consider the canon 
of Stephen Y. as prohibiting only the ordeals of hot water 

1 Herbert, Bishop of le Mans, was accused by Henry I. of England of en- 
deavoring to betray that city to its former master, and was ordered to prove 
his innocence by the ordeal of hot iron. Ivo assured him (Epist. 74) 
that no law or custom required it of an ecclesiastic, and we may presume 
that churchmen knew too much of the ordeal to trust themselves willingly 
to it, except where the management was in their own hands. A century 
earlier, St. Abbo of Fleury had claimed the same exemption for his order — 
"Ecce fama exiit, quod contra divinas humanasque leges abbas ignito ferro 
se purgare voluit." (Abbon. Floriac. Epist. viii.) Ivo, however, allows it 
for laymen. "Non negamus tamen quin ad divina aliquando recurrendum 
sit testimonia quando, praeeedente ordinaria accusatione, omnino desunt 
humana testimonia : non quod lex hoc instituerit divina, sed quod exigat 
incredulitas humana." (Epist. 252.) And again: "Vel, si id facere non 
poterit, candentis ferri examination e innocentiam suam comprobet. Si haec 
causa apud me ita ventilaretur, ita earn vellem tractari" (Epist. 249). And 
in another instance he pronounces the result of such a trial to be a decision 
beyond appeal. "Audivi enim quod vir ille de quo agitur, de objecto crimine 
examinatione igniti ferri se purgaverit, et a laesione ignis illsesus repertus sit. 
Quod si ita est . . . contra divinum testimonium nullum ulterius investigan- 
dum intelligo esse judicium." (Epist. 232.) 

The immunity claimed by ecclesiastics in England also is shown by Ecg- 
behrt, Archbishop of York, who directed that when they were unable to pro- 
cure compurgators, their unsupported oath on the cross was sufficient, their 
punishment, if guilty, being left to God. "Pro idcirco sancimus eum cui 
crimen impingitur, ut ponat super caput ejus crucem Domini, et testetur per 
Viventem in secula, cujus patibulum est crux, sese immunem esse a peccato 
hujusmodi. Et sic omnia dimittenda sunt judicio Dei." — Dialog. Ecgbert. 
Ebor. Interrog. in. (Thorpe, II. 88) 

3 Du Cange, s. v. Judichtm probablle. 

3 Gemma Animae, Lib. i. cap. 181. At least this is the only reading which 
will make sense of the passage — " Horum officium est . . . vel nuptias vel 
arma, vel peras, vel baculos vel judicia ferre et aquas vel candelas . . . 
benedicere," where "ferre et aquas" is evidently corrupt for "ferri et 
aquae." 

23* 



2*70 THE ORDEAL. 

and iron. 1 As late as 1215, the ferocious inquisitor Conrad 
of Marburg made frightful use of the hot iron in eradicating 
the Albigensian heresy which was spreading through Ger- 
many ; in that year he examined by its means no less than 
eighty unfortunates in Strasburg alone, nearly all of whom 
were forthwith transferred to the stake. 3 

This discrepancy is easily explained. During the tenth 
and eleventh centuries, the chair of St. Peter was occupied 
too often by men whose more appropriate sphere of action 
was the brothel or the arena, and the influence of the Papacy 
was feeble in the extreme. 3 The Eternal City was civilly 
and morally a lazar-house, and the Popes had too much to 
do in maintaining themselves upon their tottering thrones 
to have leisure or inclination for combined and systematic 
efforts to extend their power. The Italian expeditions of 
the Saxon and Franconian Emperors gradually brought 
Italy out of the isolation into which it had fallen, and 
under Teutonic auspices the character of the Pontiffs 
improved as their circle of influence widened. At length 
such men as Gregory TIL and Alexander III. were able to 
claim supremacy over both temporal and spiritual affairs, 
and, after a long resistance on the part of the great body 
of ecclesiastics, the tiara triumphed over the mitre. During 
this period, the clergy found in the administration of the 

1 Hoc autem utrum ad omnia genera purgationis, an ad haec duo tantum, 
quae hie prohibita esse videnfcur, pertineat, non immerito dubitatur propter 
sacrificium zelotypiae, et illud Gregorii. — Can. Consuluisti, caus. u. Quaest. 5. 

2 Trithem. Chron. Hirsaug. ann. 1215. 

3 In 963, a council of bishops held by Otho I. to depose John XII. pro- 
nounced that the Pope had turned his residence into a brothel — "sanctum 
palatium lupanar et prostibulum fecisse" — and was in the habit of leading 
his own soldiers "incendia fecisse, ense accinctum, galea et lorica indutum 
esse." (Liutprandi Hist. Otton. cap. x.) Otho III. in 998, when restoring 
a portion of the alienated patrimony of St. Peter, alludes to the diminished 
influence and authority of the Papal See. "Romam caput mundi profitemur. 
Romanam Ecclesiam matrem omnium Ecclesiarum esse testamur ; sed incu- 
ria et inscientia Pontificum longe suae claritatis titulos obfuscasse." (Goldast. 
Constit. Imp. I. 226.) 



INFLUENCE OF THE CHURCH. 271 

ordeal a source of power and profit which naturally rendered 
them unwilling to abandon it at the Papal mandate. There 
were fees to be received for its honest, 1 bribes for its dis- 
honest, application ; chartered privileges existed in favor of 
churches and monasteries, by which they derived a certain 
revenue, and the holy relics in their keeping were rendered 
a source of gain considerably greater than that which ac- 
crued merely from the devotion of the faithful. 3 It afforded 
the means of awing the laity, by rendering the priest a spe- 
cial instrument of Divine justice, into whose hands every 
man felt that he was at any moment liable to fall ; and 

1 By the acts of the Synod of Lillebonne, in 1080, a conviction by the 
hot-iron ordeal entailed a fine for the benefit of the Bishop. (Orderic. Vital. 
Lib. v. cap. v.) By the laws of St. Ladislas, in Hungary the stipend of the 
officiating priest for the red-hot iron was double that which he received for 
the water ordeal — ,; Presbyter de ferro duas pensas et de aqua unam pensam 
accipiat."— Synod. Zabolcs, ann. 1092, can. 27 (Batthyani, T. I. p. 439). 
Oddly enough, the Swedish laws made the successful party pay the fee of the 
officiating priest — a practice sufficiently degrading to the sacerdotal charac- 
ter. " Si fuerit innocens judicatus, persolvat laboris sui pretium sacerdoti : 
si vero culpabilis, ad actorem illius mercedis solutio, juxta ecclesiae vel pro- 
vinciae consuetudinem pertinebit." — Leg. Scanicar. Lib.vn. c. 15 (Du Cange, 
s. v. Ferrum candens) . 

2 Charters of this nature are almost too numerous to require more than an 
allusion. One or two examples may, however, be quoted. Thus Thibaut the 
Great of Champagne, in 1148, grants to the church of St. Mary Magdalen of 
Chateaudun the exclusive privilege of administering the necessary oaths on 
such occasions : " Ne alicui liceret exhibere sancta ad sacramenta juranda 
in villa Castriduni praeter ministris praefatae ecclesiae, omnibus duellis vel 
sacramentis," etc. (Du Cange, s. v. Adrarnire.) In 1182 we find the Vicomte 
de Beam making over to the Abbey of la Seauve the revenue arising from 
the marble basin used for the trial by boiling water at Gavarret. (Revue 
Hist, de Droit, 1861, p. 478.) Spelman gives the following, by which 
Henry III., in 1227, granted to the monks of Semplingham the right to hold 
the ordeal, among other jurisdictions : " Habeant . . . curiam suam et justi- 
tiam, cum saka et soka et thol et theam . . . et ordell et orest,'' etc. 

Perhaps the most remarkable example is contained in the Statutes of King 
Coloman of Hungary, collected in 1099, by which he prohibits the adminis- 
tration of the ordeal in the smaller churches, reserving the privilege to the 
cathedral seats and other important establishments. — Decret. Coloman. c. 11. 
(Batthyani, T. I. p. 454.) 



2t2 THE ORDEAL. 

even worse uses were sometimes made of the irresponsible 
power thus intrusted to unworthy ministers. From the 
decretals of Alexander III. we learn authoritatively that 
the extortion of money from innocent persons by its in- 
strumentality was a notorious fact 1 — a testimony confirmed 
by Ekkehardus Junior, who, a century earlier, makes the 
same accusation, and moreover inveighs bitterly against 
the priests who, to gratify the vilest instincts, were in the 
habit of exposing women to the ordeal of cold water, that 
they might strip them for the purpose. 3 

At length, when the Papal authority reached its culmi- 
nating point, a vigorous and sustained effort to abolish the 
whole system was made by the Popes who occupied the 
pontifical throne from 1159 to 1221. Nothing can be more 
peremptory than the prohibition uttered by Alexander III. 3 
In 1181, Lucius III. pronounced null and void the acquittal 
of a priest charged with homicide, who had undergone the 
water-ordeal, and ordered him to prove his innocence with 
compurgators, 4 and the blow was followed up by his succes- 
sors. Under Innocent III., the Fourth Council of Lateran, 
in 1215, formally forbade the employment of any ecclesias- 
tical ceremonies in such trials ; 5 and as the moral influence 
of the ordeal depended entirely upon its religious associa- 
tions, a strict observance of this canon must speedily have 
swept the whole system into oblivion. Yet at this very 
time the inquisitor Conrad of Marburg was employing in 

1 Post Concil. Lateran. P. n. cap. 3, 11. 

- Holophernicos .... Presbyteros, qui animas hominum carissime appre- 
cietas vendant; foeminas nudatas aquis immergi impudicis oculis curiose per- 
spiciant, autgrandi se pretio redimere cogant. — De Casibus S. Galli, cap. xiv. 

3 Nee ipsum exhibere, nee aliquomodo te volumus postulare, imo apostolica 
authoritate prohibemus firmissime. — Alex. III. Epist. 74. 

4 Can. Ex tuarum, Extra, De purgatione canoniea. 

s Nee . . . quisquam purgationi aquae ferventis vel frigidae, seu ferri can- 
dentis ritum eujuslibet benedictionis seu consecrationis impendat. — Concil. 
Lateran. can. 18. In 1227, tbe Council of Treves repeated the prohibition, 
but only applied it to the red-hot iron ordeal. " Item, nullus sacerdos can- 
dens ferrum benedicat." — Concil. Trevirens ann. 1227, cap. ix. 



GRADUAL LIMITATION. 273 

Germany the red-hot iron as a means of condemning his 
unfortunate victims hy wholesale, and the chronicler relates 
that, whether innocent or guilty, few escaped the test. 1 The 
canon of Lateran, however, was actively followed up "by the 
Papal legates, and the effect was soon discernible. 

Perhaps the earliest instance of secular legislation di- 
rected against the ordeal, except some charters granted to 
communes, is an edict of Philip Augustus in 1200, bestow- 
ing certain privileges on the scholars of the University 
of Paris, by which he ordered that a citizen accused of 
assaulting a student shall not be allowed to defend himself 
either by the duel or the water-ordeal. 3 In England, a 
rescript of Henry III., dated January 27, 1219, directs the 
judges then starting on their circuits to employ other modes 
of proof — " seeing that the judgment of fire and water is 
forbidden by the Church of Rome." 3 A few charters and 
confirmations, dated some years subsequently, allude to the 
privilege of administering it ; but Matthew of Westminster, 
when enumerating, under date of 1250, the remarkable 
events of the half century, specifies its abrogation as one 
of the occurrences to be noted, 4 and we may conclude that 
thenceforth it was practically abandoned throughout the 
kingdom. This is confirmed by the fact that Bracton, writ- 
ing about the same time, refers only to the wager of battle 
as a legal procedure, and, when alluding to other forms, 
speaks of them as things of the past. About the same time, 

1 Nam in civitate Argentinensi hoe anno non minus quam octoginta numero 
comprehensi sunt, quos memoratus frater judicio ferri candentis examinare 
contra prohibition ern eanonis publico consuevit ; et in quos ferruni adussit, 
mox ignibus tradidit. Unde, paucissimis exceptis, omnes qui coram eo semel 
accusati fuissent, et per judicium ferri candentis examinati, videbantur ilium 
plures damnavisse innocentes, dum candens ferrura a peccatis nullum repe- 
riret alienum. — Trithem. Chron. Hirsaug. ann. 1215. 

' J Fontanon, IV. 942. 

3 Spelman, Gloss, s. v. Judicium. 

4 Prohibitum est judicium quod fieri consuevit per ignem et per aquam. — 
Mat. Westmon. ann. 1250. 



274 TH.E ORDEAL. 

Alexander II. of Scotland forbade its use in cases of theft. 1 
Nearly contemporary was the Neapolitan Code, promul- 
gated in 1231, by authority of the Emperor Frederic II., in 
which he not only prohibits the use of the ordeal in all 
cases, but ridicules, in a very curious passage, the folly of 
those who could place confidence in it. 3 We may conclude, 
however, that this was not effectual in eradicating it, for, 
fifty years later, Charles of Anjou found it necessary to 
repeat the injunction. 3 About the same time, Waldemar II. 
of Denmark, Hakonsen of Iceland and Norway, and soon 
afterwards Birger Jarl of Sweden, followed the example. 4 
In Frisia we learn that, in 1219, the inhabitants still refused 
to obey the papal mandates, and insisted on retaining the 
red-hot iron ; 5 though a century later the Laws of Upstal- 
lesboom show that ordeals of all kinds had fallen into 
desuetude. 6 In France, we find no formal abrogation pro- 

1 .De cetero non fiat judicium per aquam vel ferrum, ut consuetum fuit 
antiquis temporibus. — Statut. Alex. II. cap. 7 § 3. 

3 Leges quae a quibusdam simplicibus sunt dictae paribiles .... praesentis 
nostri nominis sanctionis edicto in perpetuum inhibentes, omnibus regni 
nostri judicibus, ut nullus ipsas leges paribiles, quae absconsae a veritate 

deberent potius nuncupari, aliquibus fidelibus nostris indicet Eorum 

etinim sensum non tarn corrigendum duximus quam ridendum, qui naturalem 
candentis ferri calorem tepescere, imo (quod est stultius) frigescere, nulla 
justa causa superveniente, confidunt; aut qui reum criminis constitutum, ob 
conscientiam laesam tantum asserunt ab aquae frigidae elemento non recipi, 
quern submergi potius aeris competentis retentio non permittit. — Constit. 
Sicular. Lib. n. Tit. 31. This last clause would seem to allude to some 
artifice of the operators by which the accused was prevented from sinking in 
the cold-water ordeal, when a conviction was desired. 

This common sense view of the miracles so generally believed is the more 
remarkable as coming from Frederic, who, a few years previously, was fero- 
ciously vindicating with fire and sword the sanctity of the Holy Seamless 
Coat against the aspersions of unbelieving heretics. See his Constitutions of 
1221 in Goldastus, Const. Imp. I. 293-4. 

3 Statut. MSS. Caroli I. cap. xxii. (Du Cange, s. v. Lex Parib.) 

4 Konigswarter, op. cit. p. 176. 

5 Emo, the contemporary Abbot of Wittewerum, instances this disobe- 
dience as one of the causes of the terrible inundation of 1219. Emon. 
Chron. ann. 1219 (Matthasi Analect. III. 72). 

c Issued in 1323. 



FRANCE — GERMANY. 275 

mulgated ; b.ut the contempt into which the system had 
fallen is abundantly proved by the fact that in the ordi- 
nances and books of practice issued during the latter half 
of the century, such as the JEtablissements of St. Louis, the 
Conseil of Pierre de Fontaines, the Coulumes du Beauvoisis 
of Beaumanoir, and the Livres de Jostice et de Plet, its 
existence is not recognized even by a prohibitory allusion, 
the judicial duel thenceforward monopolizing the province 
of irregular evidence. Indeed, a Latin version of the 
Coutumier of Normandy, dating about the middle of the 
thirteenth century, or a little earlier, speaks of it as a 
mode of proof formerly employed in cases where one of 
the parties was a woman who could find no champion to 
undergo the wager of battle, adding that it had been for- 
bidden by the church, and that such cases were then 
determined by inquests. 1 

jGrermany was more tardy in yielding to the mandates 
of the church. The Teutonic knights who wielded their 
proselyting swords in the Marches of Prussia introduced 
the ordeal among other Christian observances, and in 1225 
Honorius III., at the prayer of the Livonian converts, 
promulgated a decree by which he strictly interdicted its 
use for the future. 3 Even in 1279 we find the Council of 
Bucla, and in 1298 that of Wurtzburg, obliged to repeat 
the prohibition uttered by that of Lateran. 3 The independ- 
ent spirit of the Empire, however, still refused obedience 
to the commands of the Church, and even in the four- 

1 Olim mulieres criminalibus causis insecute, cum non haberent qui eas 

defenderent, se purgabant per aquam Et quoniam hujusmodi ab 

ecclesia catholica sunt abscissa, inquisicione locorum eorum frequenter 
utimur et in multris. — Cod. Leg. Norman. P. n. c. x. §§ 2, 3. (Ludewig, 
Reliq. Msctorum. VII. 292.) It is a little singular that the same phrase is 
retained in the authentic copy of the Coutumier, in force until the close of 
the sixteenth century. — Anc. Cout. de Normandie, c. 77 (Bourdot de Riche- 
bourg. IV. 32). 

3 Can. Dilecti, Extra, De Purgatione Vulgari. 

3 Batthyani, Legg. Eccles. Hung. T. n. p. 43G.— Hartzheim, IV. 27. 



2?6 THE ORDEAL. 

teentk century the ancestral customs were preserved in full 
vigor as regular modes of procedure in a manual of legal 
practice still extant. An accusation of homicide could be 
disproved only by the judicial combat, while in other felo- 
nies a man of bad repute had no other means of escape 
than by undergoing the ordeal of hot water or iron. 1 

In Aragon, Don Jayme I., in 1247, prohibited it in the 
laws of Huesca, 9 and in 1248 in his revision of the consti- 
tution of Majorca. 3 In Castile and Leon, the Council of 
Palencia in 1322 was obliged to threaten with excommuni- 
cation all concerned in administering the ordeal of fire or 
of water,* which proves how little had been accomplished 
by the enlightened code of the "Partidas," issued about 
1260 by Alfonso the Wise. In this the burden of proof is 
expressly thrown upon the complainant, and no negative 
proofs are demanded of the defendant, who is specially 
exempted from the necessity of producing them; 5 and 
although, in obedience to the chivalrous spirit of the age, 
the battle ordeal is not abolished, yet it is so limited as to 
be practically a dead letter, while no other form of negative 
proof is even alluded to. 

Although the ordeal was thus removed from the admitted 
jurisprudence of Europe, the principles of faith which had 
given it vitality were too deeply implanted in the popular 

1 Haud secus purgare se possit imputatorum criminum ergo quam, ut supra 
dictum, ferro candente tacto. — Richtstich Landrecht, cap. lii. The same 
provisions are to be found in a French version of the Speculum Suevicum, 
probably made towards the close of the fourteenth century for the use of the 
western provinces of the Empire. — Miroir de Souabe, P. I. c. xlviii. (Ed. 
MatiJe, Neufchatel, 1843). 

2 Du Cange, s. v. Ferrum candens. 

3 Pro aliquo crimine vel delicto, vel demanda, non facietis nobiscum vel 
cum bajulo aut curia civitatis, nee inter vos ipsos, batalam per ferrum cali- 
dum, per hominem nee per aquam, vel aliam ullain rem. (Du Cange, s. v. 
Bat a Ha.) 

4 Du Cange, s. v. Ferrum candens. 

5 Non es tenuda la parte de probar lo que niega porque non lo podrie 
facer. — Las Siete Partidas. P. m Tit. xiv. 1. 1. 



PERSISTENCE OF POPULAR BELIEF. 277 

mind to be at once eradicated, and accordingly, as we have 
seen above, instances of its employment continued occa- 
sionally for several centuries to disgrace the tribunals. The 
ordeal of battle, indeed, as may be seen in the preceding 
essay, was not legally abrogated until long afterward; 
and the longevity of the popular belief, upon which the 
whole system was founded, may be gathered from a remark 
of Sir William Staundford, a learned judge and respectable 
legal authority, who, in 1557, expresses the same confident 
expectation of Divine interference which had animated Hinc- 
mar or Poppo. After stating that in an accusation of 
felony, unsupported by evidence, the defendant had a right 
to wager his battle, he proceeds : " Because in that the 
appellant demands judgment of death against the appellee, 
it is more reasonable that he should hazard his life with 
the defendant for the trial of it, than to put it on the 
country .... and to leave it to God, to whom all things 
are open, to give the verdict in such case, scilicet, by 
attributing the victory or vanquishment to the one party 
or the other, as it pleaseth Him." 1 

The papal authority, however, was not the only element 
at work to abolish this superstition. The revival of the 
Roman law in the twelfth and thirteenth centuries did 
much to influence the secular tribunals against all ordeals, 
as has been seen in the case of the wager of battle. So, 
also, a powerful assistant must be recognized in the rise 
of the communes, whose sturdy common sense not infre- 
quently rejected its absurdity. Accordingly, we find that 
it is rarely comprehended in their charters, as it is in 
those granted to abbeys and monasteries, while occasion- 
ally a special exemption is alluded to as a privilege. 3 The 

1 Plees del Corone, chap. xv. (quoted in 1 Barnewall & Alderson, 433). 
3 An instance of this occurs as early as 1132, in a charter granted by King 
Roger of Naples to the inhabitants of Bari : " Ferrum, cacavum, pugnam, 

24 



278 THE ORDEAL. 

influence of the commercial and municipal spirit, fostered 
by the establishment of chartered towns, in dissipating 
the mists of error and prejudice, is farther shown by the 
fact that the early codes of commercial law make no 
reference whatever to the proof by ordeal, though some 
of those codes were drafted at a period when it was a 
recognized portion of ordinary jurisprudence. The Roles 
d'Oleron, the laws of Wisby, and the Consulat de la Mer 
endeavor to regulate all questions by the reasonable rules 
of evidence, and offer no indication that the judgment of 
God was resorted to when human means were at fault. 
Indeed, King Amaury, who ascended the throne of Cyprus 
in 1194, specifically declares, in a law embodied in the 
Assises de Jerusalem, that maritime causes are under the 
jurisdiction of a special court, instead of the ordinary civic 
tribunal, in order to avoid the battle ordeal permitted by 
the latter •* from which we may safely assume that the 
other forms of ordeal were equally ignored by the maritime 
law dispensers. The same spirit is shown in a treaty of 
1228 between Riga, a member of the Hanseatic League, and 
Mstislaf Davidovitch, Prince of Smolensko, which among 

aquam, vobis non judicabit vel judicari faciet." (Muratori, Antiq. Ital. 
Dissert. 38.) 

So also in the Charter of Geertsbergh, confirmed by Baldwin of Constanti- 
nople, Earl of Flanders, in 1200. — " Item nemo cogatur inire duellum, vel 
subire judicium ignis et aquae," (Mirsei Diplom. Belgic. c. Ixvii.) — while, at 
the same time, no doubt those who desired the ordeal were not debarred 
from it, as is shown by the interpolation in another MS. of the words " nisi 
spontaneus" (Le Glay, Revue de Miraeus, p. 32). It is a little singular, 
however, to find in the Franc de Bruges in 1190 the whole system of or- 
deals in full and common use. Every Saturday, a certain time was set apart 
for the courts to take cognizance of them — " Et tempus duellorum et banni- 
torum a scabinis ibi statutum observabunt, ita ut de bannitis primo, postea 
de duellis tractandum et de judiciis aqu£e et ferri." — Keure de Bruges, § 61. 
(Warnkonig, Hist, de le Fland. IV. 377.) 

1 Por ce que en la cort de la mer na point de bataille por preuve ne por 
demande de celuy veage, et en 1 autre cort des borgeis deit aveir espreuves 
par bataille. — Baisse Court, cap. 43. 



PERPETUATION OF SUPERSTITION. 279 

its provisions especially exempted the Germans in the terri- 
tory of the latter from all liability to the ordeal of hot iron 
and of battle. 1 

Although we may hail the disappearance of the ordeal as 
marking an era in human progress, yet should we err in 
deeming it either the effect or the cause of a change in the 
constitution of the human mind. The mysterious attrac- 
tion of the unknown and undefined, the striving for the 
unattainable, the yearning to connect our mortal nature 
with some supernal power — all these mixed motives assisted 
in maintaining superstitions similar to those which we have 
thus passed in review. The mere external manifestations 
were swept away, but the potent agencies which vivified 
them remained, not perhaps less active because they worked 
more secretly. Thus generation after generation of follies, 
strangely affiliated, waits on the successive descendants of 
man, and perpetuates in another shape the superstition 
which we had thought eradicated. In its most vulgar and 
abhorrent form, we recognize it in the fearful epidemic of 
sorcery and witchcraft which afflicted the sixteenth and sev- 
enteenth centuries ; sublimed to the verge of heaven, we see 
it reappear in the seraphic theories of Quietism ; descend- 
ing again towards earth, it assumes the mad vagaries of 
the Convulsionnaires. In a different guise, it leads the 
refined scepticism of the eighteenth century to a belief in 
the supernatural powers of the divining-rod, which could 
not only trace out hidden springs and deep-buried mines, but 
could also discover crime, and follow the malefactor through 
all the doublings of his cunning flight. 3 Each age has its 

1 Traite de 1228, art. 3. (Esneaux, Histoire de Russie II. 272.) 

2 When, in 1692, Jacques Aymar attracted public attention to the miracles 
of the divining-rod, he was called to Lyons to assist the police in discover- 
ing the perpetrators of a mysterious murder, which had completely baffled 
the agents of justice. Aided by his rod, he traced the criminals, by land 
and water, from Lyons to Beaucaire, where he found in prison a man whom 



280 THE ORDEAL. 

own sins to answer for, its own puerilities to bewail — hap- 
piest that which best succeeds in hiding them, for it can 
scarce do more. Here, in our boasted nineteenth century, 
when the triumph of human intelligence over the forces of 
nature, stimulating the progress of material prosperity with 
the press, the steam-engine, and the telegraph, has deluded 
us into sacrificing our psychical to our intellectual being — 
even here the duality of our nature reasserts itself, and in 
the obscene blasphemy of Mormonism and in the fantastic 
mysteries of pseudo-spiritualism we see a protest against 
the despotism of mere reason. If we wonder at these per- 
versions of our noblest attributes, we must remember that 
the intensity of the reaction measures the original strain, 
and in the dismal insanities of the day we thus may learn 
how utterly we have forgotten the Divine warning, " Man 
shall not live by bread alone!" 

Which age shall cast the first stone? When Cicero 
wondered how two soothsayers could look at each other 
without laughing, he showed that the grosser forms of 
superstition were not universally shared. Such, we may 
be assured, has been the case at every period ; and, in our 
own day, can we, who proudly proclaim our disbelief in the 
follies which exist around us, individually assert that we 
have not contributed, each in his own infinitesimal degree, 
to the causes which have produced them ? 

he declared to "be a participant, and who finally confessed the crime. Aymar 
was at length proved to be merely a clever charlatan ; but the mania to 
which he gave rise lasted through the eighteenth century, and nearly at its 
close his wonders were rivalled by a brother sharper, Campetti. 



IV. 
TORTURE 



The preceding essays have traced the development of 
sacramental purgation and of the ordeal as resources de- 
vised by human ingenuity when called upon to decide ques- 
tions too intricate for the impatient intellect of a rude and 
semi-barbarous age. There was another mode, however, of 
attaining the same object, which has received the sanction 
of the wisest law-givers during the greater part of the 
world's history, and our survey of the field of irregular 
testimony would be incomplete without glancing at the 
subject of the judicial use of torture. 

In the early stages of society, when force reigns supreme 
and law is but an instrument for its convenient and effective 
exercise, the judge or the pleader would naturally seek to 
extort from the reluctant witness a statement of what he 
might desire to conceal, or from the presumed criminal a 
confession of his guilt. To accomplish this, the readiest 
means would seem to be the infliction of pain, to escape 
from which the witness would sacrifice his friends, and the 
accused would submit to the penalty of his crime. The 
means of administering graduated and effectual torment 
would thus be sought for, and the rules for its application 
would in time be developed into a regular system, forming 
part of the recognized principles of jurisprudence. 

The only subject of surprise, indeed, is that torture was 
not more generally authorized in primitive times. To the 
parent stock of the Aryan family of races it would appear 

24* 



282 TORTURE. 

to have been unknown: at least, it has left no recorded 
trace in the elaborate provisions of the Hindu law as it 
has existed for three thousand years. 1 Among the Semitic 
nations, too, the jurisprudence of Moses is free from any 
indication that such expedients were regarded as legitimate 
among the Hebrews. The connection between the latter 
and the Egyptians would appear to warrant the conclusion 
that torture was equally unknown to the antique civilization 
of the Pharaohs, and this is confirmed by the description 
which Diodorus Siculus gives of the solemn and mysterious 
tribunals, where written pleadings alone were allowed, lest 
the judges should be swayed by the eloquence of the human 
voice, and where the verdict was announced, in the unbroken 
silence, by the presiding judge touchiug the successful suitor 
with an image of the Goddess of Truth. 2 

In Greece, we find the use of torture thoroughly under- 
stood and permanently established. The oligarchical and 
aristocratic tendencies, however, which were so strongly 
developed in the Hellenic commonwealths, imposed upon 

1 In Book viii. of the Institutes of Manu there are very minute directions 
as to evidence. The testimony preferred is that of witnesses, whose com- 
parative credibility is very carefully discussed, and when that is not pro- 
curable, the parties are ordered to be sworn or to be submitted to the ordeal. 
These principles have been transmitted unchanged to the present day. See 
the Ayeen Akbery, Tit. Beyhar, Vol. II. p. 494, and Halhed's Code of 
Gentoo Laws, chap, xviii. 

3 Diod. Sicul. I. lxxv. — Sir. Gardiner Wilkinson (Ancient Egyptians, Vol. 
II.) figures several of these little images. 

That torture was a customary legal procedure in Egypt has been assumed by 
some writers from a passage in iElian to the effect that Egyptians were com- 
monly regarded as capable of dying under torture in preference to revealing 
the truth — "iEgyptios aiunt patientissime ferre tormenta : et citius mod 
hominem iEgyptium in quaestionibus tortum examinatumque quam veritatem 
prodere." (Var. Hist. vn. xviii.) This can hardly, however, be considered 
to prove anything. In the time of iElian. the Egyptians had been for five 
centuries under Greek or Roman rule, and had probably acquired ample 
experience of torture. There were doubtless, also, numerous Egyptian slaves 
scattered throughout the Empire, where they must have had sufficient oppor- 
tunity to earn their reputation for endurance. 



IN GREECE. 283 

it a limitation characteristic of the pride and self-respect of 
the governing order. As a general rule, no freeman could 
be tortured. Even freedmen enjoyed an exemption, and it 
was reserved for the unfortunate class of slaves, and for 
strangers who formed no part of the body politic. Yet 
there were exceptions, as among the Rhodians, whose laws 
authorized the torture of free citizens ; and in other states 
it was occasionally resorted to, in the case of flagrant po- 
litical offences ; while the people, acting in their supreme 
and irresponsible authority, could at any time decree its 
application to any one irrespective of privilege. Thus, when 
Hipparchus was assassinated by Harmodius, Aristogiton 
was tortured to obtain a revelation of the plot, and several 
similar proceedings are related by Valerius Maximus as 
occurring among the Hellenic nations. 1 The inhuman tor- 
ments inflicted on Philotas, son of Parmenio, when accused 
of conspiracy against Alexander, show how little real pro- 
tection existed when the safety of a. despot was in question : 
and illustrations of torture decreed by the people are to be 
seen in the proceedings relative to the mutilation of the 
statues of Hermes, and in the proposition, on the trial of 
Phocion, to put him, the most eminent citizen of Athens, 
to the rack. 

In a population consisting largely of slaves, mostly of 
the same race as their masters, often men of education and 
intelligence and employed in positions of confidence, legal 
proceedings must frequently have turned upon their evi- 
dence, in both civil and criminal cases. Their evidence, 
however, was inadmissible, except when given under torture, 
and then, by a singular confusion of logic, it was estimated 
as the most convincing kind of testimony. Consequently, 
the torturing of slaves formed an important portion of the 
administration of Athenian justice. Either party to a suit 
might offer his slaves to the torturer or demand those of 

1 Lib. in. cap. iii. 



284 TORTURE. 

his opponeht, and a refusal to produce them was regarded 
as seriously compromising. When both parties tendered 
their slaves, the judge decided which should be received. 
Even without bringing a suit into court, disputants could 
have their slaves tortured for evidence with which to effect 
an amicable settlement. 

In formal litigation, the defeated suitor paid whatever 
damages his adversary's slaves might have undergone at 
the hands of the professional torturer, who, as an expert 
in such matters, was empowered to assess the amount of 
depreciation they had sustained. It affords a curious com- 
mentary on the high estimation in which such testimony 
was held to observe that, when a man's slaves had testified 
against him on the rack, they were not protected from 
his subsequent vengeance, which might be exercised upon 
them without restriction. 

As the laws of Greece passed away, leaving compara- 
tively few traces on the institutions of other races, it will 
suffice to add that the principal modes in which torture 
was sanctioned by them were the wheel (tfpo^os), the ladder 
or rack (septal), the comb with sharp teeth (xm^oj), the low 
vault (xv$uv) in which the unfortunate witness was thrust 
and bent double, the burning tiles (nait^ot), the heavy hog- 
skin whip (xxjtpi^ts), and the injection of vinegar into the 
nostrils. 1 

In the earlier days of Rome, the general principles gov- 
erning the administration of torture were the same as in 
Greece. Under the Republic, the free citizen was not liable 

1 Aristophanes (Ranee, 617) recapitulates most of the processes in vogue. 
Aiachos. x.x) 7rS>z QathvI^oCj 
Xanthias. Travrct TpoTrcv, h kxi/uaki 

<f hV*?, K.pi/xa.<reti;, virrpi^iSi [At*.<niyS)V, <Mpa>V) 
o-t^kSoV; 'in cf V/c t&? p7vct; o?&? iy^juov, 
vrKlvSwc STrtn&iU, 7rdvret TaExAat. 
The best summary I have met with of the Athenian laws of torture is in 
Eschbach's "Introduction a l'Etude du Droit," § 208. 



IN ROME. 285 

to it, and the evidence of slaves was not received without 
it. With the progress of despotism, however, the safe- 
guards which surrounded the freeman were broken down, 
and autocratic Emperors had little scruple in sending their 
subjects to the rack. 

Even as early as the second Triumvirate, a praetor named 
Q. Gallius, in saluting Octavius, chanced to have a double 
tablet under his toga. To the timid imagination of the 
future Emperor, the angles of the tablet, outlined under 
the garment, presented the semblance of a sword, and he 
fancied Gallius to be the instrument of a conspiracy against 
his life. Dissembling his fears for the moment, he soon 
caused the unlucky praetor to be seized while presiding at 
his own tribunal, and after torturing him like a slave with- 
out extracting a confession, put him to death. 1 

The incident was ominous of the future, when all the 
powers of the state were concentrated in the august person 
of the Emperor. He was the representative and embodi- 
ment of the limitless sovereignty of the people, whose 
irresponsible authority was transferred to him. The rules 
and formularies, however, which had regulated the exer- 
cise of power, so long as it belonged to the people, were 
feeble barriers to the passions and fears of Caesarism. 
Accordingly, a principle soon became engrafted in Roman 
jurisprudence that, in all cases of "crimen majestatis," 
or high treason, the free citizen could be tortured. In 
striking at the ruler, he had forfeited all rights, and the 
safety of the state, as embodied in the Emperor, was to be 
preserved at every sacrifice. 

The Emperors were not long in discovering and exercising 
their power. When the plot of Sejanus was discovered, 
the historian relates that Tiberius abandoned himself so 
entirely to the task of examining by torture the suspected 

1 Servilera in modum eum torsit ; ac fatentem nihil, jussit occidi. — Sueton. 
August, xxii. 



286 TORTURE. 

accomplices of the conspiracy, that when an old Rhodian 
friend, who had come to visit him on a special invitation, 
was announced to him, the preoccupied tyrant absently 
ordered him to be placed on the rack, and on discovering 
the blunder had him quietly put to death, to silence all 
complaints. The shuddering inhabitants pointed out a 
spot at Capri where he indulged in these terrible pursuits, 
and where the miserable victims of his wrath were cast into' 
the sea before his eyes, after having exhausted his ingenuity 
in exquisite torments. 1 When the master of the world 
took this fearful delight in human agony, it may readily 
be imagined that law and custom offered little protection 
to the defenceless subject, and Tiberius was not the only 
one who relished these inhuman pleasures. The half-insane 
Caligula found that the torture of criminals by the side of 
his dinner-table lent a keener zest to his revels, and even 
the timid and beastly Claudius made it a point to be 
present on such occasions. 3 

Under the stimulus of such hideous appetites, capricious 
and irresponsible cruelty was able to give a wide extension 
to the law of treason. If victims were wanted to gratify 
the whims of the monarch or the hate of his creatures, it 
was easy to find an offender or to make a crime. Under 
Tiberius, a citizen removed the head from a statue of Au- 
gustus, intending to replace it with another. Interrogated 
before the Senate, he prevaricated, and was promptly put 
to the torture. Encouraged by this, the most fanciful in- 
terpretation was given to violations of the respect assumed 
to be due to the late Emperor. To undress one's self or to 

1 Neque tormentis neque supplicio euiquam pepercit : soli huic cognitioni 
adeo per totos dies deditus et intentus, ut Rhodiensem hospitem quern fami- 
liaribus litteris Romam evoearat, advenisse sibi nuntiatuni, torqueri sine 
mora jusserit, quasi aliquis ex necessariis quaestioni adesset : deinde, errore 
detecto, et occidi, ne divulgaret injuriam. Carniflcinae ejus ostenditur locus 
Capreis, unde damnatos, post longa et exquisita tormenta, praacipitare coram 
se in mare jubebat — Sueton. Tiberius, c. lxii. 

3 Ibid. Calig. xxxii. — Claud, xxxiv. 



IN ROME. 287 

beat a slave near his image ; to carry into a cabinet cfaisance 
or a house of ill fame a coin or a ring impressed with his 
sacred features; to criticize any act or word of his became 
a treasonable offence ; and finally an unlucky wight was 
actually put to death for allowing the slaves on his farm to 
pay him honors on the anniversary which had been sacred 
to Augustus. 1 • 

So, when it suited the waning strength of paganism to 
wreak its vengeance for anticipated defeat upon the rising 
energy of Christianity, it was easy to include the new reli- 
gion in the convenient charge of treason, and to expose its 
votaries to all the horrors of ingenious cruelty. If Nero 
desired to divert from himself the odium of the conflagra- 
tion of Home, he could turn upon the Christians, and by 
well directed tortures obtain confessions involving the 
whole sect, thus giving to the populace the diversion of a 
persecution on a scale until then unknown, besides provid- 
ing for himself the new sensation of the human torches 
whose frightful agonies illuminated his unearthly orgies. 2 
Diocletian even formally promulgated in an edict the rule* 
that all professors of the hated religion should be deprived 
of the privileges of birth and station, and be subject to the 
application of torture. 3 The indiscriminate cruelty to which 

1 Statuae quidam Augusti caput deinserat ut alterius imponeret. Acta res 
in Senatu. Et quia ambigebatur, per tormenta quaesita est. Damnato reo, 
paullatim hoc genus caluniniae eo processit, ut haec quoque capitalia essent : 
circa Augusti simulacrum servum cecidisse, vestimenta mutasse : nummo 
vel annulo effigiem impressam, latrinae vel lupanari intulisse ; dictum ullum 
factumve ejus existimatione aliqua laesisse. Periit denique et is qui honores 
in colonia sua eodem die decerni sibi passus est quo decreti et Augusto olim 
erant. — Sueton. Tiber, lviii. 

2 Tacit. Annal. xv. xlir. Ergo abolendo rumori Nero subdidit reos, et 
quaesitissimis poenis adfecit quos per flagitia invisos, vulgus Christian os appel- 

labat Igitur, primo conrepti qui fatebantur, deinde indicio eorum, 

multitudo ingens, haud perinde in crimine incendii, quam odio humani 
generis convicti sunt. 

a Postridie propositum est edictum quo cavebatur ut religionis illius 
homines carerent omni honore ac dignitate, tormentis subjecti essent ex 



288 TORTURE. 

the Christians were thus exposed without defence, at the 
hands of those inflamed against them by all evil passions, 
may, perhaps, have been exaggerated by the ecclesiastical 
historians, but that frightful excesses were perpetrated 
under sanction of law cannot be doubted ~by any one who 
has traced, even in comparatively recent times and among 
Christian nations,*the progress of political and religious 
persecution. 1 

The torture of freemen accused of crimes against the 
State or the sacred person of the emperor thus became an 
admitted principle of Roman law. In his account of the 
conspiracy of Piso, under Nero, Tacitus alludes to it as a 
matter of course, and in describing the unexampled endu- 
rance of Epicharis, a freedwoman, who underwent the most 
fearful torments without compromising those who possessed 
little claim upon her forbearance, the annalist indignantly 
compares her fortitude with the cowardice of noble Romans, 
who betrayed their nearest relatives and dearest friends at 
the mere sight of the torture chamber. 2 

• Under these limits, the freeman's privilege of exemption 
was carefully guarded, at least in theory. A slave while 
claiming freedom, or a man claimed as a slave, could not be 
exposed to torture f and even if a slave, when about to be 

quocumque ordine aut gradu venirent, adversus eos omnis actio caleret, etc. 
— Lactant. de Mortib. Persecut. cap. xiii. 

1 Tormentorum genera inaudita excogitabantur. (Ibid. cap. xv.) — When 
the Christians were accused of an attempt to burn the imperial palace, Dio- 
cletian "ira inflammatus, excarnificari omnes suos protinus preecipit. Sede- 
bat ipse atque innocentes igne torrebat." (Ibid. cap. xiv.) — Lactantius, or 
whoever was the real author of the tract, addresses the priest Donatus to 
whom it is inscribed: ' 'Novies etiam tormentis cruciatibusque variis subjectus, 

novies adversarium gloriosa confessione vicisti Nihil adversus te 

verbera, nihil ungulse, nihil ignis, nihil ferrum, nihil varia tormentorum 
genera valuerunt." (Ibid. cap. xvi.) Ample details may be found in 
Eusebius, Hist. Eccles. Lib. v. c. 1, vi. 39, 41, vin. passim, Lib. Martyrum ; 
and in Cyprian, Epist. x. (Ed. Oxon. 1682). 
3 Tacit. Annal. xv. lvi., lvii. 

3 In causis quoque liberalibus, non oportet per eorum tormenta, de quorum 
' statu quseritur, veritatem requiri. — L. 10 § 6 Dig. xlviii. xviii. 



IN ROME. 289 

tortured, endeavored to escape by asserting his freedom, it 
was necessary to prove his servile condition before pro- 
ceeding with the legal torments. 1 In practice, however, 
these privileges were continually infringed, and numerous 
edicts of the emperors were directed to repressing the 
abuses which constantly occurred. Thus we find Diocle- 
tian forbidding the application of torture to soldiers or 
their children under accusation, unless they had been dis- 
missed the service ignominiously. 3 The same emperor pub- 
lished anew a rescript of Marcus Aurelius declaring the 
exemption of patricians and of the higher imperial officers, 
with their legitimate descendants to the fourth generation ; :i 
and also a dictum of Ulpian asserting the same privilege 
in favor of decurions, or local town councillors, and their 
children. 4 In 376, Valentinian was obliged to renew the 
declaration that decurions were only liable in cases of 
majestatis, and, in 399, Arcadius and Honorius found it 
necessary to explicitly declare that the privilege was per- 
sonal and not official, and that it remained to them after 
laying down the decurionate. 5 Theodosius the Great, in 
385, especially directed that priests should not be subjected 
to torture in giving testimony, 6 the significance of which is 
shown by the fact that no slave could be admitted into holy 
orders. 

The necessity" of this constant renewal of the law is indi- 
cated by a rescript of Yalentinian, in 369, which shows that 
freemen were not infrequently tortured in contravention of 
law; but that torture could legally be indiscriminately 
inflicted by any tribunal in cases of treason, and that in 

1 L. 12 Dig. xl viii. xviii. (Ulpian.) 

2 Const. 8 Cod. ix. xli. (Dioclet. et Maxim.) 

3 Const. 11 Cod. ix. xli. 

4 Ibid. § 1. 

5 Const. 16 Cod. ix. xli. 

G Presbyteri citra injuriara qusestionis testimonium dicant. — Const. 8 Cod. 
i. 3. 

25 



290 TORTURE. 

other accusations it could be authorized by. the order of the 
emperor. 1 This power was early assumed and frequently 
exercised. Thus Domitian tortured a man of prsetorian 
rank on a doubtful charge of intrigue with a vestal virgin, 3 
and various laws were promulgated by several emperors 
directing the employment of torture irrespective of rank, in 
some classes of accusations. Thus, in 217, Caracalla author- 
ized it in cases of suspected poisoning by women. 3 Con- 
stantine decreed that unnatural lusts should be punished 
by the severest torments, without regard to the station 
of the offender. 4 Constantius persecuted in like manner 
soothsayers, sorcerers, magicians, diviners, and augurs, 
who were to be tortured for confession, and then to be put 
to death with every refinement of suffering. 5 So, Justinian, 
under certain circumstances, ordered torture to be used on 
parties accused of adultery. 6 The power thus assumed by 
the monarch could evidently only be limited by his discre- 
tion in its exercise. 

One important safeguard, however, existed, which, if 
properly maintained, must have greatly lessened the fre- 
quency of torture as applied to freemen. In bringing an 
accusation, the accuser was obliged to inscribe himself 
formally, and was exposed to the lex talionis in case he 
failed to prove the justice of the charge. 7 A rescript of 
Constantine, in 314, decrees that in cases *of majestatis, as 
the accused was liable to the severity of torture without 
limitation of rank, so the accuser and his informers were to 
be tortured when they were unable to make good their 

1 Const. 4 Cod. ix. viii. 

3 Sueton. Domit. cap. viii. To Domitian the historian also ascribes the 
invention of a new and infamously indecent kind of torture (Ibid. cap. x.). 

3 Ipsa quoque mulier torquebitur. Neque enim aegre feret si torqueatur, 
quae venenis suis viscera hominis extinxit. — Const. 3 Cod. ix. xli. 

4 Const. 31. Cod. ix. ix. 
6 Const. 7 Cod. ix. viii. 

6 Novell, cxvu. cap. xv. § 1. 

1 Const. 17 Cod. ix. ii.— Const. 10 Cod. ix. xlvi, 



IN ROME. 291 

accusation. 1 This enlightened legislation was preserved 
by Justinian, and must have greatly cooled the ardor of the 
pack of calumniators and informers, who, from the days of 
Sylla, had been encouraged and petted until they held in 
their hands the life of almost every citizen. 

All these laws relate to the extortion of confessions from 
the accused. In turning to the treatment of witnesses, we 
find that even with them torture was not confined to the 
servile condition. With slaves, it was not simply a conse- 
quence of slavery, but a mode of confirming and rendering 
admissible the testimony of those whose character was not 
sufficiently known to give their evidence credibility without 
it. Thus a legist under Constantine states that gladiators 
and others of similar occupation cannot be allowed to bear 
witness without torture f and, in the same spirit, a novel 
of Justinian, in 539, directs that the rod shall be used to 
extract the truth from unknown persons who are suspected 
of bearing false witness or of being suborned. 3 

It may, therefore, readily be imagined that when the evi- 
dence of slaves was required, it was necessarily accompa- 
nied by the application of torture. Indeed, Augustus 
declared that while it is not to be expressly desired in 
trifling matters, in weighty and capital cases the torture of 
slaves is the most efficacious mode of ascertaining the 
truth. 4 When we consider the position occupied by slavery 
in the Roman world, the immense proportion of bondmen 
who carried on all manner of mechanical and industrial 

1 Const. 3 Cod. ix. viii. 

2 Si ea rei conditio sit ut harenarium testem vel similem personam ad- 
mittere cogimur, sine tormentis testimonio ejus credendum non est. — L. 21, 
§ 2 Dig. xxn. v. , 

3 Novell, xc. cap. i. § 1. 

4 Quaestiones neque semper in omni causa et persona desiderari debere 
arbitror : et cum capitalia et atrociora maleficia non aliter explorari et inves- 
tigari possunt, quam per servorutn quaestiones, efficacissimas esse ad requi. 
rendam veritatem existimo et habendas censeo. — L. 8 Dig. xlviii. xviii. 
(Paul us). 



292 TORTURE. 

occupations for the benefit of their owners, and who, as 
scribes, teachers, stewards, and in other confidential posi- 
tions, were privy to almost every transaction of their 
masters, we can readily see that scarce any suit could be 
decided without involving the testimony of slaves, and thus 
requiring the application of torture. It was not even, as 
among most modern nations, restricted to criminal cases. 
Some doubt, indeed, seems at one time to have existed as 
to its propriety in civil actions, but Antoninus Pius de- 
cided the question authoritatively in the affirmative, and 
this became a settled principle of Roman jurisprudence, 
even when the slaves belonged to masters who were not 
party to the case at issue. 1 

There was but one limitation to the universal liability of 
slaves. They could not be tortured to extract testimony 
against their masters, whether in civil or criminal cases f 
though, if a slave had been purchased by a litigant to get 
his testimony out of court, the sale was pronounced void, 
the price was refunded, and the slave could then be tor- 
tured. 3 This limitation arose from a careful regard for the 
safety of the master, and not from any feeling of humanity 
towards the slave. So great a respect, indeed, was paid to 
the relationship between the master and his slave that the 
principle was pushed to its fullest extent. Thus even an 
employer, who was not the owner of a slave, was protected 
against the testimony of the latter.* When a slave was 
held in common by several owners, he could not be tor- 

1 L. 9 Dig. xlviii. xviii. (Marcianus). — Licet itaque et de servis alienis 
haberi quasstionem, si ita res suadeat. 

3 L. 9 § 1 Dig. xlviii. xviii. — L. 1 § 16 Dig. xlviii. xvii. (Severus). — 
L. L§ 18 Dig. xlviii. xviii. (Ulpian.) 

3 Qui servum ideo eomparavit, ne in se torqueretur, restituto pretio, poterit 
interrogari. — Pauli Lib. v. Sentt. Tit. xvi. § 7. — The same principle is in- 
volved in a rescript of the Antonines. — L. 1 § 14 Dig. xlviii. xvii. (Severus). 

4 Si servus bona fide mihi serviat, etiam si dominium in eo non habui, 
potest dici, torqueri eum in caput meum non debere. — L. 1 § 7 Dig. xlviii. 
xvii. The expression "in caput domini" applies as well to civil as to crimi- 
nal cases. — Pauli Lib. v. Sentt. Tit. xvi. § 5. 



IN ROME. 293 

tured in opposition to any of them, unless one were accused 
of murdering his partner. 1 A slave could not be tortured 
in a prosecution against the father or mother of the owner, 
or even against the guardian, except in cases concerning 
the guardianship f though the slave of a husband could be 
tortured against the wife. 3 Even the tie which bound the 
freedman to his patron was sufficient to preserve the former 
from being tortured against the latter;* whence we may 
assume that, in other cases, manumission afforded no pro- 
tection from the rack and scourge. This question, however, 
appears doubtful. The exemption of freedmen would seem 
to be proved by the rescript which provides that inconve- 
nient testimony should not be got rid of by manumitting 
slaves so as to prevent their being subjected to torture f 
while, on the other hand, a decision of Diocletian directs 
that, in cases of alleged fraudulent wills, the slaves and 
even the freedmen of the heir could be tortured to ascertain 
the truth. 6 

The policy of the law in protecting masters from the evi- 
dence of their tortured slaves also varied at different 
periods. From an expression of Tacitus, it would seem 
not to have been part of the original jurisprudence of the 
republic, but to have arisen from a special decree of the 
senate. In the early days of the empire, while the monarch 
still endeavored to veil his irresponsible power under the 
forms of law, and showed his reverence for ancient rights 
by evading them rather than by boldly subverting them, 
Tiberius, in prosecuting Libo and Silanus, caused their 
slaves to be transferred to the public prosecutor, and was 

1 L. 3 Dig. xlyiii. xviii. — Const. 13 Cod. ix. xli. 

2 L. 10 § 2 Dig. xlviii. xviii.— Const. 2 Cod. ix. xli. (Sever, et Antonin. 
ann. 205). 

3 L. 1 § 11 Dig. xlviii. xvii. 

4 L. 1 § 9 Dig. xlviii. xvii. 

8 L. 1 § 13 Dig. xlviii. xvii. — Pauli Lib. v. Sentt. Tit. xvi. $ 9. 
6 Const. 10 Cod ix. xli. (Dioclet. et Maxim.) 

25* 



294 TORTURE. 

thus able to gratify his vengeance legally by extorting the 
required evidence. 1 Subsequent emperors were not reduced 
to these subterfuges, for the principle became established 
that in cases of majestatis, even as the freeman was liable 
to torture, so his slaves could be tortured to convict him ; 3 
and as if to show how utterly superfluous was the cunning 
of Tiberius, the respect towards the master in ordinary 
affairs was carried to that point that no slave could be 
tortured against a former owner with regard to matters 
which had occurred during his ownership. 3 On the other 
hand, according to Ulpian, Trajan decided that when the 
confession of a guilty slave under torture implicated his 
master, the evidence could be used against the master, and 
this, again, was revoked by subsequent constitutions. 4 
Indeed, it became a settled principle of law to reject all 
incriminations of accomplices. 

Having thus broken down the protection of the citizen 
against the evidence of his slaves in accusations of treason, 
it was not difficult to extend the liability to other sj)ecial 
crimes. Accordingly we find that, in 197, Septimius Se- 
verus specified adultery, fraudulent assessment, and crimes 
against the state as cases in which the evidence of slaves 
against their masters was admissible. 5 The provision 
respecting adultery was repeated by Caracalla in 214, and 
afterwards by Maximus, 6 and the same rule was also held 

1 Et quia vetere Senatusconsulto quaestio in caput domini prohibebatur, 
eallidus et novi juris repertor Tiberius mancipari singulos actori publico 
jubet. — Tacit. Annal. II. 30. See also III. 67. Somewhat similar in spirit 
was his characteristic device for eluding the law which prohibited the exe- 
cution of virgins (Sueton. Tiber. Ixi.). 

2 This principle is embodied in innumerable laws. It is sufficient to refer 
to Constt. 6 § 2, 7 § 1, 8 § 1 Cod. ix. viii. 

3 Servus in caput ejus domini a quo distractus est, cuique aliquando ser- 
vivit, in memoriam prioris dominii interrogari non potest. — L. 18 § 6 Dig. 
XL viii. xviii. (Paulus). 

4 L. 1 § 19 Dig. xl viii. xviii. (Ulpian.) 

5 Const. 1 Cod. ix. xli. (Sever, et Antonin.) 

6 Constt. 3, 32 Cod. ix. ix.— L. 17 Dig. xlviii. xviii. (Papin.) 



IN ROME. 295 

to be good in cases of incest. 1 It is probable that this in- 
creasing tendency alarmed the citizens of Rome, and that 
they clamored for a restitution of their immunities, for, 
when Tacitus was elected emperor, in 215, he endeavored 
to propitiate public favor by proposing a law to forbid the 
testimony of slaves against their masters except in cases 
of majestatis. 2 No trace of such a law, however, is found 
in the imperial jurisprudence, and the collections of 
Justinian show that the previous regulations were in full 
force in the sixth century. 

Yet it is probable that the progress of Christianity pro- 
duced some effect in mitigating the severity of legal pro- 
cedure, and in shielding the unfortunate slave from the 
cruelties to which he was exposed. Under the republic, 
while the authority of the paterfamilias was still una- 
bridged, any one could offer his slaves to the torture when 
he desired to produce their evidence. In the earlier times, 
this was done by the owner himself in the presence of the 
family, and the testimony thus extorted was carefully 
taken down to be duly produced in court ; but subsequently 
the proceeding was conducted by public officers — the quaes- 
tors and triumviri capitales. 3 How great was the change 
effected is seen by the declaration of Diocletian, in 286, that 
masters were not permitted to bring forward their own 
slaves to be tortured for evidence in cases wherein they 
were personally interested. 4 This would necessarily reduce 
the production of slave testimony, save in accusations of 
majestatis and other excepted crimes, to cases in which the 
slaves of third parties were desired as witnesses ; and even 

1 L. 5 Dig. xl viii. xviii. (Marcian.) 

3 In eadem oratione cavit ut servi in dominorum capita non interrogaren- 
tur, ne in causa majestatis quidem (Fl. Vopisc. Tacit, cap. ix.). 

3 Du Boys, Hist, du Droit Crim. des Peup. Anciens. pp. 297, 331, 332. 

4 Servos qui proprii indubitate juris tui probabuntur, ad interrogationem 
nee offerente te produci sineremus : tantum abest ut etiam invito te contra 
dominam vocem rumpere cogantur. — Const. 7 Cod. ix. xli. (Dioclet. et 
Maxim.). 



296 TORTURE. 

in these, the frequency of its employment must have been 
greatly reduced by the rule which bound the party calling for 
it to deposit in advance the price of. the slave, as estimated 
by the owner, to remunerate the latter for his death, or for 
his diminished value if he were maimed or crippled for life. 1 
When the slave himself was arraigned upon a false accusa- 
tion and tortured, an old law provided that the master 
should receive double the loss or damage sustained ; 3 and 
in 383, Yalentinian the Younger went so far as to decree 
that those who accused slaves of capital crimes should in- 
scribe themselves, as in the case of freemen, and should be 
subjected to the lex talionis if they failed to sustain the 
charge. 3 This was an immense step towards equalizing the 
legal condition of the bondman and his master. It was 
apparently in advance of public opinion, for the law is not 
reproduced in the compilations of Justinian, and probably 
soon was disregarded. 

There were some general limitations imposed on the ap- 
plication of torture, but they were hardly such as to pre- 
vent its abuse at the hands of cruel or unscrupulous judges. 
Antoninus Pius set an example which modern jurists might 
well have imitated when he directed that no one should be 
tortured after confession to implicate others ; 4 and a rescript 
of the same enlightened emperor fixes at fourteen the mini- 
mum limit of age liable to torture, except in cases of majes- 
tatis, when, as we have seen, the law spared no one, for in 
the imperial jurisprudence the safety of the monarch over- 
rode all other considerations. 5 Women were spared during 

1 Pauli Lib. v. Sentt. Tit. xvi. § 3.— See also LI. 6, 13 Dig. xlviii. xviii. 
3 Const. 6 Cod. ix. xlvi. This provision of the L. Julia appears to have 
been revived by Diocletian. 

3 Lib. ix. Cod. Theod. i. 14. 

4 L. 16 § 1 Dig. xlviii. xviii. (Modestin.) 

5 De minore quatuordecem annis quaestio habenda non est, ut et Divus 
Pius Csecilio Jubentiano rescripsit. § 1. Seel omnes omnino in majestatis 
crirnine, quod ad personas principum attinet, si ad testimonium provocentur, 
cum res exigit, torquentur. — L. 10 Dig. xlviii. xviii. (Aread.) 



IN ROME. 29? 

pregnancy. 1 Moderation was enjoined upon the judges, 
who were to inflict only such torture as the occasion ren- 
dered necessar}-, and were not to proceed further at the 
will of the accuser. 2 No one was to be tortured without 
the inscription of a formal accuser, who rendered himself 
liable to the lex talionis, unless there were violent sus- 
picions to justify it f and Adrian reminded his magistrates 
that it should be used for the investigation of truth, and 
not for the infliction of punishment. 4 Adrian further 
directed, in the same spirit, that the torture of slave wit- 
nesses should only be resorted to when the accused was so 
nearly convicted that it alone was required to confirm his 
guilt. 5 Diocletian ordered that proceedings should never 
be commenced with torture, but that it might be emplo} r ed 
when requisite to complete the proof, if other evidence 
afforded rational belief in the guilt of the accused. 6 

What was the exact value set upon evidence procured by 
torture it would be difficult at this day to determine. We 
have seen above that Augustus pronounced it the best form 
of proof, but other legislators and jurists thought differently. 
Modestinus affirms that it is only to be believed when there 
is no other mode of ascertaining the truth. 7 Adrian cau- 
tions his judges not to trust to the torture of a single 
slave, but to examine all cases by the light of reason and 
argument. 8 According to Ulpian, the imperial constitu- 
tions provided that it was not always to be received nor 
always rejected; in his own opinion it was unsafe, danger- 

1 L. 3 Dig. xl viii. xix. (Ulpian.) 

* Tormenta autem adhibenda sunt non quanta accusator postulat ; sed ut 
moderatae rationis temperamenta desiderant. — L. 10 § 3 Dig. xlviii. xviii. 

3 L. 22 Dig. xlviii. xviii. 

4 L. 21 Dig. xlviii. xviii. 

8 L. 1 § 1 Dig. xlviii. xviii. (Ulpian.) 

G Const. 8 Cod. ix. xli. (Dioclet. et Maxim.) 

7 L. 7. Dig. xx. v. 

8 Non utique in servi unius quaestione fidera rei constituendam, sed argu- 
ments causam examinandam. — L. 1 § 4 Dig. xlviii. xviii. (Ulpian.) 



298 TORTURE. 

ous, and deceitful, for some men were so resolute that they 
would bear the extremity of torment without yielding, 
while others were so timid" that through fear they would 
at once inculpate the innocent. 1 From the manner in 
which Cicero alternately praises and discredits it, we can 
safely assume that lawyers were in the habit of treating it, 
not on any general principle, but according as it might 
affect their client in any particular case; and Quintilian 
remarks that it was frequently objected to on the ground 
that torture renders falsehood easy to some and necessary 
to others, in proportion to their ability or inability to en- 
dure pain. 3 That these views were shared by the public 
Would appear from the often quoted maxim of Publius 
Syrus — " Etiam innocentes cogit mentiri dolor" — and from 
Valerius Maximus, who devotes his chapter "De Quses- 
tionibus" to three cases in which it was erroneously either 
trusted or distrusted. A slave of M. Agrius was accused 
of the murder of Alexander, a slave of C. Fannius. Agrius 
tortured him, and, on his confessing the crime, handed him 
over to Fannius, who put him to death. Shortly afterwards, 
the missing slave returned home. This same Alexander was 
made of sterner stuff, for when he was subsequently sus- 
pected of being privy to the murder of C. Flavius, a Roman 
knight, he was tortured six times and persistently denied 
his guilt, though he subsequently confessed it and was duly 
crucified. A curious instance, moreover, of the little real 
weight attached to such evidence is furnished by the case 
of Fulvius Flaccus, in which the whole question turned 
upon the evidence of his slave Philip. This man was 
actually tortured eight times, and refused through it all 
to criminate his master, who was nevertheless condemned. 3 

1 L. 1 § 23 Dig. xlviii. xviii. — Res est fragilis et periculosa et quas veri- 
tatem fallat. 

3 Altera ssepe etiam eausam falsa dicendi, quod aliis patientia facile raen- 
dacium faciat, aliis infinnitas necessarium. — M. F. Quintil. Inst. Orat. v. iv. 

3 Valer. Maxim. Lib. vin. c. iv. 



IN ROME. 299 

Quintus Curtius probably reflects the popular feeling on 
the subject, in his pathetic narrative of the torture of Philo- 
tas on a charge of conspiracy against Alexander. After 
enduring in silence the extremity of hideous torment, he 
promised to confess if it were stopped, and when the tor- 
turers were removed he addressed his brother-in-law Cra- 
terus, who was conducting the investigation : " Tell me 
what } t ou wish me to say." Curtius adds that no one 
knew whether or not to believe his final confession, for 
torture is as apt to bring forth lies as truth. 1 

From the instances given by Valerius Maximus, it may 
be inferred that there was no limit set upon the application 
of torture. The extent to which it might be carried 
appears to haA r e rested with the discretion of the tribunals, 
for, with the exception of the general injunctions of mode- 
ration alluded to above, no instructions for its administra- 
tion are to be found in the Roman laws which have been 
preserved to us, unless it be the rule that when several 
persons were accused as accomplices, the judges were 
directed to commence with the youngest and weakest. 3 

Since the time of Sigonius, much antiquarian research 
has been directed to investigating the various forms of 
torture employed by the Romans. They illustrate no 
principles, however, and it is sufficient to enumerate the 
rack, the scourge, fire in its various forms, and hooks for 
tearing the flesh, as the modes generally authorized by law. 
The Christian historians, in their narratives of the fearful 
persecutions to which their religion was exposed, give us a 
more extended idea of the resources of the Roman torture 
chamber. Thus Prudentius, in his description of the mar- 
tyrdom of St. Vincent, alludes to a number of varieties, 
among which we recognize some that became widely used 

1 Q. Curt. Ruf. Hist. vi. xi. Anceps conjectura est quoriiam et vera con- 
fessis et falsa dicentibus idem doloris finis ostenditur. 

a Pauli Lib. v. Sentt. Tit. xiv. § 2.— L. 18 Dig. xlviii. xviii. 



300 TORTURE. 

in after, times, showing that little was left for modern inge- 
nuity to invent. 

" Vinctum retortis brachiis, Truculentus hostis martyrem 

Sursuni ac deorsum extendite, Lignoque plantas inserit, 

Compago donee ossium Divaricatis cruribus. 
Divulsa membratim crepet. Quin addit et poenam novatu 

Post hinc hiulcis ictibus Crucis peritus artifex, 

Nudate costarum abdita Nulli tyranno cognitain 

TJt per lacunas vulnerum Nee fando compertam retro. 
Jecur retectum palpitet. Fragmenta testarum jubet 

* ^# * * Hirta impolitis angulis 
Tune deinde cunctatus diu Acuminata, informia, 

Decernit extrema omnium : Tergo jacentis sternere. 
Igni, grabato, et laminis Totum cubile spiculis 

Exerceatur qusestio. Armant dolores anxii : 

* * * * Insomne qui subter latus 

In hoc barathrum conjecit Mucrone pulsent obvio." etc. 1 

I have dwelt thus at length on the details of the Roman 
law of torture because, as will he seen hereafter, it was the 
basis of all modern legislation on the subject, and has left 
its impress on the far less humane administration of crimi- 
nal justice in Europe almost to our own day. Yet at first 
it seemed destined to disappear utterly from human sight 
with the downfall of the Roman power. 

In turning from the nicely poised and elaborate provi- 
sions of the Imperial laws to the crude jurisprudence of the 
Barbarian hordes who gradually inherited the crumbling 
remains of the Empire of the West, we enter into social 
and political conditions so different that we are naturally 
led to expect a corresponding contrast in every detail of 
legislation. For the cringing suppliant of the audience 
chamber, abjectly prostrating himself before a monarch 
who combines in his own person every legislative and 
executive function, we have the freeman of the German 

1 Aurel. Prudent, de Vincent. Hymn. v. 



BARBARIAN CHARACTERISTICS. 301 

forests, who sits in council with his chief, who frames the 
laws which both are bound to respect, and who pays to 
that chief only the amount of obedience which superior 
vigor and intellect may be able to enforce. The structure 
of such a society is fairly illustrated by the incident which 
Gregory of Tours selects to prove the kingly qualities of 
Clovis. During his conquest of Gaul, and before his con- 
version, his wild followers pillaged the churches with little 
ceremony. A bishop, whose cathedral had suffered largely, 
sent to the king to request that a certain vase of unusual 
size and beauty might be restored to him. Clovis could 
only promise that if the messenger would accompany him 
to Soissons, w 7 here the spoils were to be divided, and if 
the vase should chance to fall to his share, it should be 
restored. When the time came for allotting the plunder, 
he addressed his men, requesting as a special favor that 
the vase might be given to him before the division, but a 
sturdy soldier, brandishing his axe, dashed it against the 
vase, exclaiming, " Thou shalt take nothing but what the 
lot assigns to thee." For a year, Clovis dissembled his 
resentment at this rebuff, but at length, when opportunity 
offered, he was prompt to gratify it. While reviewing and 
inspecting his troops, he took occasion to bitterly reproach 
the uncourtly Frank with the condition of his weapons, 
which he pronounced unserviceable. The battle-axe excited 
his especial displeasure. He threw it angrily to the ground, 
and as the owner stooped to pick it up, Clovis drove his 
own into the soldier's head, with the remark, " It was thus 
you served the vase at Soissons." 1 

This personal independence of the freeman is one of the 
distinguishing characteristics of all the Teutonic institu- 
tions of that age. Corporal punishments for him were 
unknown to the laws. The principal resource for the repres- 
sion of crime was by giving free scope to the vengeance of 

1 Greg. Turon. Hist. Franc. Lib. II. c. xxvii. 
26 



302 TORTURE. 

the injured party, and by providing fixed rates of composi- 
tion by which he could be bought off. As the criminal could 
defend himself with the sword against the faida or feud of 
his adversary, or could compound for his guilt with money, 
the suggestion of torturing him to extort a confession would 
seem an absurd violation of all his rights. Crimes were 
regarded solely as injuries to individuals, and the idea 
that society at large was interested in their discovery, 
punishment, and prevention, was entirely too abstract to 
have any influence on the legislation of so barbarous 
an age. 

Accordingly, the codes of the Bipuarians, the Alamanni, 
the Angli and Werini, the Frisians, the Saxons, and the 
Lombards contain no allusion to the employment of tor- 
ture under any circumstances ; and such few directions for 
its use as occur in the laws of the Salien Franks, of the 
Burgundians, and of the Baioarians, do not conflict with 
the general principle. 

The personal inviolability which shielded the freeman 
cast no protection over the slave. He was merely a piece 
of property, and if he were suspected of a crime, the readiest 
and speediest way to convict him was naturally adopted. 
His denial could not be received as satisfactory, and the 
machinery of sacramental purgation or the judicial duel 
was not for him. If he were charged with a theft at home, 
his master would undoubtedly tie him up and flog him until 
he confessed, and if the offence were committed against a 
third party, the same process would necessarily be adopted 
by the court. Barbarian logic could arrive at no other 
mode of discovering and repressing crime among the friend- 
less and unprotected, whose position seemed to absolve 
them from all moral responsibility. 

The little that we know of the institutions of the ancient 
Gauls presents us with an illustration of the same prin- 
ciple developed in a somewhat different direction. Caesar 
states that, when a man of rank died, his relatives assem- 



THE BARBARIANS. 303 

bled and investigated the circumstances of his death. If 
suspicion alighted upon his wives, they were tortured like 
slaves, and if found guilty were executed with all the 
refinements of torment. 1 

In accordance with this tendency of legislation, therefore, 
we find that among the Barbarians the legal regulations for 
the torture of slaves are intended to protect the interests 
of the owner alone. The master, indeed, could not refuse 
his slave to the torturer, unless he were willing to pay for 
him the full wehrgild of a freeman, and if the slave con- 
fessed under the torture, the master had no claim for com- 
pensation arising either from the punishment or crippling 
of his bondman. 3 When, however, the slave could not be 
forced to confess and was acquitted, the owner had a claim 
for damages, though no compensation was made to the 
unfortunate sufferer himself. The original law of the Bur- 
gundians, promulgated in 4T1, is the earliest of the Teutonic 
codes extant, and in that we find that the accuser who failed 
to extract a confession was obliged to give to the owner 
another slave, or to pay his value. 3 The Baioarian law is 
equally careful of the rights of ownership, but seems in 
addition to attach some slight shade of criminality to the 
excess of torture by the further provision that, if the slave 
die under the torment without confession, the prosecutor 
shall pay to the owner two slaves of like value, and if 
unable to do so, that he shall himself be delivered up as a 
slave. 4 The Salique law, on the other hand, only guards 

1 De Bell. Gall. vi. xix. 

2 These provisions are only specified in the Salique Law (First Text of 
Pardessus, Tit. xl. §§ 6, 7, 8, 9, 10.— L. Emend. Tit. xlii. §§ 8, 9, 10, 11, 
12, 13), but they were doubtless embodied in the practice of the other tribes. 

3 L. Burgund. Tit. vn. — The other allusions to torture in this code, Tit. 
xxxix. §§ 1, 2, and Tit. lxxvii. §§ 1, 2, also refer only to slaves, coloni, and 
originarii. Persons suspected of being fugitive slaves were always tortured 
to ascertain the fact, which is in direct contradiction to the principles of the 
Roman law. 

4 L. Baioar. Tit. vm. c. xviii. §§ 1, 2, 3. 



304 TORTURE. 

the interests of the owner by limiting the torture to 120 
blows with a rod of the thickness of the little finger. If 
this does not extort a confession, and the accuser is still 
unsatisfied, he can deposit the value of the slave with the 
owner, and then proceed to torture him at his own risk 
and pleasure. 1 

It will be observed that all these regulations provide 
merely for extracting confessions from accused slaves, and 
not testimony from witnesses. Indeed, the system of evi- 
dence adopted by all the Barbarian laws for freemen was 
of so different a character, that no thought seems to have 
been entertained of procuring proof by the torture of wit- 
nesses. The only allusion, indeed, to such a possibility 
shows how utterly repugnant it was to the Barbarian 
modes of thought. In some MSS. of the Salique law there 
occurs the incidental remark that when . a slave accused is 
under the torture, if his confession implicates his master, 
the charge is not to be believed. 3 

Such was the primitive legislation of the Barbarians, but 
though in principle it was long retained, in practice it was 
speedily disregarded by those whom irresponsible power 
elevated above the law. The Roman populations of the con- 
quered territories were universally allowed to live under their 
old institutions ; in fact, law everywhere was personal and not 
territorial, every race and tribe, however intermingled on 

1 L. Salic. First Text, Tit. xl. §§ 1, 2, 3, 4.— L. Emend. Tit. xlii. §§ 1, 
2, 3, 4, 5. — In a treaty between Childebert and Clotair, about tbe year 593, 
there is, however, a clause which would appear to indicate that in doubtful 
cases slaves were subjected, not to torture, but to the ordeal of chance. " Si 
servus in furto fuerit ineulpatus, requiratur a domino ut ad viginti noctes 
ipsum in mallum praesentet. Et si dubietas est, ad sortem ponatur." (Pact, 
pro Tenore Pacis cap. v. — Baluz.) This was probably only a temporary 
international regulation to prevent frontier quarrels and reprisals. That it 
had no permanent force of law is evident from the retention of the procedures 
of torture in all the texts of the Salique law, including the revision by Char- 
lemagne. 

2 First Text, Tit. xl. § 4.— MS. Monaster. Tit. XL. § 3.— L. Emend. Tit. 
xlii. § 6. 



THE MEROVINGIANS. 305 

the same soil, being subjected to its own system of jurispru- 
dence. The summar}^ process of extracting confessions 
and testimony which the Roman practice thus daily brought 
under the notice of the barbarians could not but be attrac- 
tive to their violent and untutored passions. Their political 
system was too loose and undefined to maintain the freedom 
of the Sicambrian forests in the wealthy^ plains of France, 
and the monarch, who, beyond the Rhine, had scarce been 
more than a military chief, speedily became a despot, whose 
power over those immediately around him was limited only 
by the fear of assassination, and over his more distant sub- 
jects by the facility of revolution. 

When all thus was violence, and the law of the strongest 
was scarcely tempered by written codes, it is easy to imagine 
that the personal inviolability of the freeman speedily ceased 
to guarantee protection. In the long and deadly struggle 
between Fredegonda and Brunhilda, for example, the fierce 
passions of the adversaries led them to employ without 
scruple the most cruel tortures in the endeavor to fathom 
each other's plots. 1 A single case m&y be worth recounting 
to show how completely torture had become a matter of 
course as the first resource in the investigation of doubtful 
questions. When Leudastes, about the year 580, desired 
to ruin the pious Bishop Gregory of Tours, he accused him 
to Chilperic I. of slandering the fair fame of Queen Frede- 
gonda, and suggested that full proof for condemnation 
could be had by torturing Plato and Gallienus, friends of 
the bishop. He evidently felt that nothing further was 
required to substantiate the charge, nor does Gregory him- 
self, in narrating the affair, seem to think that there was 
anything irregular in the proposition. Gallienus and Plato 
were seized, but from some cause were discharged unhurt. 
Then a certain Riculfus, an accomplice of Leudastes, was 

1 Greg. Turon. Hist. Franc. Lib. vn. c. xx.— Aimoin. Lib. ill. c. xxx. 
xlii. li. Ixiv. lxvii. — Flodoard. Hist. Remens. Lib. n. c. ii. 

26* 



306 TORTURE. 

reproached for his wickedness by a man named Modestus, 
whereupon he accused Modestus to Fredegonda, who 
promptly caused the unhappy wretch to be severely tor- 
tured without extracting any information from him, and 
he was imprisoned until released by the miraculous aid of 
St. Medard. Finally, Gregory cleared himself canonically 
of the imputation, and the tables were turned. Leudastes 
sought safety in flight. Riculfus was not so fortunate. 
Gregory begged his life, but could not save him from being 
tortured for confession. For six hours he was hung up 
with his hands tied behind his back, and then, stretched 
upon the rack, he was beaten with clubs, rods, and thongs, 
by as many as could get at him, until, as Gregory naively 
remarks, no piece of iron could have borne it. At last, 
when nearly dead, his resolution gave way, and he confessed 
the whole plot by which it had been proposed to get rid of 
Chilperic and Fredegonda, and to place Clovis on the throne. 1 
Now, Plato, Gallienus, and Modestus were probably of 
Gallo-Roman origin, but Riculfus was evidently of Teu- 
tonic stock ; moreover, he was a priest, and Plato an arch- 
deacon, and the whole transaction shows that canon law 
and Frankish law were of little avail against the unbridled 
passions of the Merovingian. 

Of all the Barbarian tribes, none showed themselves so 
amenable to the influences of Roman civilization as the 
Goths. Their comparatively settled habits, their early con- 
version to Christianity, and their position as allies of the 
empire long before they became its conquerors, rendered 
them far less savage under Alaric than wore the Franks in 
the time of Clovis. The permanent occupation of Septi- 
mania and Catalonia by the Wisigoths, also, took place at 
a period when Rome was not as yet utterly sunk, and when 
the power of her name still possessed something of its 

1 Gregor. Turon. Hist. Franc. Lib. y. c. xlix. 



THE OSTROGOTHS. 307 

ancient influence, which could not but modify the institu- 
tions of the new-comers as they strove to adapt their primi- 
tive customs to the altered circumstances under which 
they found themselves. It is not to be wondered at, there- 
fore, if their laws reflect a condition of higher civilization 
than those of kindred races, and if the Roman jurispru- 
dence has left in them traces of the appreciation of that 
wonderful work of the human intellect which the Goths 
were sufficiently enlightened to entertain. 

The Ostrogoths, allowing for the short duration of their 
nationality, were almost as much exposed to the influences 
of Rome. Their leader, Theodoric, had been educated in 
Constantinople, and was fully as much a Roman as many of 
the Barbarian soldiers who had risen to high station under 
the emperors, or even to the throne itself. All his efforts 
were directed to harmonizing the institutions of his dif- 
ferent subjects, and he was too enlightened not to see the 
manifest superiority of the Roman polity. 

His kingdom was too evanescent to consolidate and per- 
fect its institutions or to accumulate any extended body of 
jurisprudence. What little exists, however, manifests a 
compromise between the spirit of the Barbarian tribes of 
the period and that of the conquered mistress of the world. 
The Edict of Theodoric does not allude to the torture of 
freemen, and it is probable that the free Ostrogoth could 
not legally be subjected to it. With respect to slaves, its 
provisions seem mainly borrowed from the Roman law. 
No slave could be tortured against a third party for evidence 
unless the informer or accuser was prepared to indemnify 
the owner at his own valuation of the slave. No slave 
could be tortured against his master, but the purchase of a 
slave to render his testimony illegal was pronounced null 
and void ; the purchase money was returned, and the slave 
was tortured. The immunity of freedmen is likewise shown 
by the cancelling of any manumission conferred for the 



308 TORTURE. 

purpose of preventing torture for evidence. 1 Theodoric, 
however, allowed his Roman subjects to be governed by 
their ancient laws, and he apparently had no repugnance 
to the use of torture when it could legally be inflicted. 
Thus he seems particularly anxious to ferret out and 
punish sorcerers, and in writing to the Prefect and Count of 
Rome he urges them to apprehend certain suspected parties, 
and try them by the regular legal process, which, as we 
have seen, by the edicts of Constantius and his successors, 
was particularly severe in enjoining torture in such cases, 
both as a means of investigation and of punishment. 3 

On the other hand, the Wisigoths founded a permanent 
state, and as they were the only race whose use of torture 
was uninterrupted from the period of their settlement until 
modern times, and as their legislation on the subject was 
to a great extent a model for that of other nations, it may 
be worth while to examine it somewhat closety. 

The earliest code of the Wisigoths is supposed to have 
been compiled by Eurik, in the middle of the fifth century, 
but it was subsequently much modified by recensions and 
additions. It was remoulded by Chindaswind and Recas- 
wind about the middle of the seventh century, and it has 
reached us only in this latest condition, while the MSS. 
vary so much in assigning the authorship of the various 
laws, that but little reliance can be placed upon the 
assumed dates of most of them. Chindaswind, moreover, 
in issuing his revised code, prohibited for the future the 
use of the Roman law, which had previously been in force 
among the subject papulations, under codes specially pre- 
pared for them by order of Alaric II. Thus the Wisigothic 
laws, as we have them, are not laws of race, like the other 
Barbarian codes, but territorial laws carefully digested for 
a whole nation by men conversant alike with the Roman 
and with their own ancestral jurisprudence. 

1 Edict Theodor. cap. c. ci. cii. 3 Cassiodor. Variar. iv. xxii xxiii. 



THE WISIGOTHS. 309 

It is therefore not surprising to find in them the use of 
torture legalized somewhat after the fashion of the impe- 
rial constitutions, and yet with some humane modifications 
and restrictions. Slaves were liable to torture under accu- 
sation, but the accuser had first to make oath that he was 
actuated by neither fraud nor malice in preferring the 
charge ; and he was further obliged to give security that he 
would deliver to the owner another slave of equal value if 
the accused were acquitted. If an innocent slave were 
crippled in the torture, the accuser was bound to give two 
of like value to the owner, and the accused received his 
freedom. If the accused died under the torture, the judge 
who had manifested so little feeling and discretion in per- 
mitting it was also fined in £ slave of like value, making- 
three enuring to the owner, and careful measures were pre- 
scribed to insure that a proper valuation was made. If the 
accuser were unable to meet the responsibility thus incurred, 
he was himself forfeited as a slave. Moreover, the owner 
was always at liberty to save his slave from the torture by 
proving his innocence otherwise if possible ; and if he suc- 
ceeded, the accuser forfeited to him a slave of equal value, 
and was obliged to pay all the costs of the proceedings. 1 

Freedmen were even better protected. They could only 
be tortured for crimes of which the penalties exceeded a 
certain amount, varying with the nature of the freedom 
enjoyed by the accused. If no confession were extorted, 
and the accused were crippled in the torture, the judge and 
the accuser were both heavily fined for his benefit, and if 
he died the fines were paid to his family. 3 

There could have been little torturing of slaves as wit- 
nesses, for in general their evidence was not admissible, 
even under torture, against any freeman, including their 
masters. The slaves of the royal palace, however, could 

1 L. Wiaigoth. Lib. vi. Tit. i. 1. 5. 3 Ibid. 



310 TORTURE. 

give testimony as though they were freemen, 1 and, as in 
the Roman law, there were certain excepted crimes, such 
as treason, adultery, homicide, sorcery, and coining, in 
accusations of which slaves could be tortured against their 
masters, nor could they be preserved by manumission 
against this liability. 3 

As regards freemen, the provisions of different portions 
of the code do not seem precisely in harmony, but all of 
them throw considerable difficulties in the way €)f pro- 
cedures by torture. An early law directs that, in cases of 
theft or fraud, no one shall be subjected to torture unless 
the accuser bring forward the informer, or inscribe himself 
with three sureties to undergo the lex talionis in case the 
accused prove innocent. ]\jpreover, if no confession were 
extorted, the informer was to be produced. If the accuser 
could not do this, he was bound to name him to the judge, 
who was then to seize him, unless he were protected by 
some one too powerful for the judicial authority to control. 
In this event it was the duty of the judge to summon the 
authorities to his aid, and in default of so doing he was 
liable for all the damages arising from the case. The in- 
former, when thus brought within control of the court, 
was, if a freeman, declared infamous and obliged to pay 
ninefold the value of the matter in dispute; if a slave, six- 
fold, and to receive a hundred lashes. If the freeman were 
too poor to pay the fine, he was adjudged as a slave in 
common to the accuser and the accused. 3 

A later law, issued by Chindaswind, is even more careful 
in its very curious provisions. No accuser could force to 
the torture a man higher in station or rank than himself. 
The only cases in which it was permitted for nobles were 
those of treason, homicide, and adulter, while for freemen 
of humbler position the crime must be rated at a fine of 

1 L, Wisigoth. ii. iv. 4. 

2 Ibid. vi. i. 4; vn. vi. 1; vni. iv. 10, 11. 

3 Ibid. vi. i. 1. 



THE WISIGOTHS. 311 

500 solicli at least. In these cases, an open trial was first 
prescribed. If this were fruitless, the accuser who desired 
to push the matter bound himself in case of failure to 
deliver himself up as a slave to the accused, who could 
maltreat him at pleasure, short of taking his life, or com- 
pound with him at his own valuation of his sufferings. 
The torture then might last for three days ; the accuser 
was the torturer, subject to the supervision of the judge, 
and might inflict torment to any extent that his ingenuity 
could suggest, short of producing permanent injury or 
death. If death resulted, the accuser was delivered to the 
relatives of the deceased to be likewise put to death ; the 
judge who had permitted it through collusion or corruption 
was exposed to the same fate, but if he could swear that 
he had not been bribed by the accuser, he was allowed to 
escape with a fine of 500 solidi. A very remarkable regula- 
tion, moreover, provided against false confessions extorted 
by torment. The accuser was obliged to draw up his accu- 
sation in all its details, and submit it secretly to the judge. 
Any confession under torture which did not agree substan- 
tially with this was set aside, and neither convicted the 
accused nor released the accuser from the penalties to 
which he was liable. 1 

Under such a system, strictly enforce^ few persons 
would be found hardy enough to incur the dangers of sub- 
jecting an adversary to the rack. As with the Franks, 
however, so among the Wisigoths, the laws were not pow- 
erful enough to secure their own observance. The authority 
of the kings grew gradually weaker and less able to repress 
the assumptions of ambitious prelates and unruly grandees, 
and it is easy to imagine that in the continual struggle all 
parties sought to maintain and strengthen their position 
by an habitual disregard of law. At the Thirteenth Coun- 
cil of Toledo, in 683, King Erwig, in his opening address, 

1 L. Wisigoth. vi. i. 2. 



312 TORTURE. 

alludes to the frequent abuse of torture in contravention of 
the law, and promises a reform. The council, in turn, de- 
plores the constantly recurring cases of wrong and suffering 
wrought "regise subtilitatis astu vel profanse potestatis 
instinctu," and proceeds to decree that in future no freeman, 
noble, or priest shall be tortured unless regularly accused 
or indicted, and properly tried in public j and this decree 
duly received the royal confirmation. 1 

As the Goths emerge again into the light of history 
after the Saracenic conquest, we find these ancient laws 
still in force among the descendants of the refugees who 
had gathered around Don Pelayo. The use of the Latin 
tongue gradually faded out among them, and about the 
twelfth or thirteenth century the Wisigothic code was 
translated into the popular language, and this Romance 
version, known as the Fuero Juzgo, long continued the 
source of law in the Peninsula. In this, the provisions of 
the early Gothic monarchs respecting torture are textually 
preserved, with two trifling exceptions which may reason- 
ably be regarded as scarcely more than mere errors of 
copyists. 3 Torture was thus maintained in Spain as an 
unbroken ancestral custom, and when Alfonso the Wise, 
about the middle of the thirteenth century, attempted to 
revise the jurisprudence of his dominions, in the code 
known as Las Siete Partidas which he promulgated, he 
only simplified and modified the proceedings, and did not 
remove the practice. Although he proclaimed that the 

1 Concil. Toletan. XIII. ana. 683, can. ii. 

2 See the Fuero Juzgo, Lib. I. Tit. iii. I. 4; Tit. iv. 1. 4.— Lib. in. Tit. iv. 
11. 10, 11.— Lib. vi. Tit. i. 11. 2, 4, 5.— Lib. vii. Tit. i. 1. 1 ; Tit. vi. 1. 1. 
The only points in which these vary from the ancient laws are that in Lib. 
vi. Tit. i. 1. 2, adultery is not included among the crimes for suspicion of 
which nobles can be tortured, and that the accuser is not directed Jo con- 
duct the torture. In Lib. vn. Tit. i. 1. 1, also, the informer who fails to 
convict is condemned only in a single fine, and not ninefold ; he is, however, 
as in the original, declared infamous, as a ladro ; if a slave, the penalty is 
the same as with the Wisigoths. 



SPAIN. 313 

person of man is the noblest thing of earth — " La persona 
del home es la mas noble cosa del mundo'" — he held that 
stripes and other torture inflicted judicially were no dis- 
honor, even to Spanish sensitiveness. 2 Though, moreover, 
he declared that hidden crimes were often discovered by 
means of torture when no other mode was available, 3 still 
he could not shut his eyes to the perilous nature of such 
testimony, and he decreed that no confession extorted by 
torture, or by the fear of dishonor or death, had any valid- 
ity. 4 To reconcile the irreconcilable, therefore, he adopted 
an expedient which subsequently became almost universal 
throughout Europe. After confession under torture, the 
prisoner was remanded to his prison. On being subse- 
quently brought before the judge, he was again interro- 
gated, when, if he persisted in his confession, he was 
condemned. If he recanted, he was again tortured ; and, 
if the crime was grave, the process could be repeated a 
third time : but, throughout all, he could not be convicted 
unless he made a free confession apart from the torture. 
Even after conviction, moreover, if the judge found reason 
to believe that the confession was the result of fear of the 
torture, or of rage at being tortured, or of insanity, the 
prisoner was entitled to an acquittal. 5 Evidently, there 
was little real confidence reposed in the procedure, and } 7 et 
this want of faith only doubled or trebled its severity. 
Alfonso's admiration of the Roman law led him to bor- 

1 Partidas, P. vn. Tit. i. 1. 26. 3 Ibid. P. vn. Tit. ix. 1. 16. 

3 Car por los tormentos saben los judgadores inuebas veces la verdad de 
los malos fechos encubiertos, que non se podrian saber dotra guisa. — Ibid. 
P. vn. Tit. xxx. 1. 1. 

4 Por premia de tormentos 6 feridas, 6 por miedo de niuerte 6 de desbonra 
que quieren facer a los homes, conoscen £ las vegadas algunas casas que de 
su grado non las conoscerien : e por ende decimos que la conoscencia que 
fuere fecha en alguna destas maneras que non debe valer nin empesce al que 
la face.— Ibid. P. in. Tit. xiii. 1. 5. 

5 Ibid. P. vn. Tit. xxx. 1. 4. — Porque la conoscencia que es fecha en el 
tormento, si non fuere confirmada despues sin premia, non es valedera. 

27 



314 TORTURE. 

row much from it rather than from the Gothic code, though 
both are represented in the provisions which he established. 
Thus, except in accusations of treason, no one of noble 
blood could be tortured, nor a doctor of laws or other 
learning, nor a member of the king's council, or that of 
any city or town, except for official forgery, nor a pregnant 
woman, nor a child under fourteen years of age. 1 So, when 
several accomplices were on trial, the torturer was directed 
to commence with the youngest and worst trained, as the 
truth might probably be more readily extracted from him. 3 
The provision, also, that when a master, or mistress, or 
one of their children was found dead at home, all the 
household slaves were liable to torture in the search for 
the murderer, bears a strong resemblance to the cruel law 
of the Romans, which condemned them to death in case 
the murderer remained undiscovered. 3 

The regulations concerning the torture of slaves are 
founded, with little variation, on the Roman laws. Thus 
the evidence of a slave was only admissible under torture, 
and no slave could be tortured to prove the guilt of a 
present or former owner, nor could a freedman, in a case 
concerning his patron, subject to the usual exceptions 
which we have already seen. The excepted crimes enu- 
merated by Alfonso are seven, viz : adultery, embezzle- 
ment of the royal revenues by tax collectors, high treason, 
murder of a husband or wife by the other, murder of a 
joint owner of a slave by his partner, murder of a testator 
by a legatee, and coining. With the slave, as with the 

1 Partidas, P. n. Tit. xxi. 1. 24. Except the favor shown to the learned 
professions, "per honra de la escieneia," which afterwards became general 
throughout Europe, these provisions may all be found in the Roman law. — 
Const. 4 Cod. ix. viii. ; L. 3 Dig. xlviii. xix. ; L. 10 Dig. xlviii. xviii. ; 
Const. 11 Cod. ix. xli. 

2 Partidas, P. vn. Tit. xxx. 1. 5. — Imitated from L. 18 Dig. xlviii. 
xviii. 

3 Partidas, P. vn. Tit. xxx. 1. 7. Cf. Tacit. Annal xiv. xliii.-xlv. 



SPAIN. 315 

freeman, all testimony under torture required subsequent 
confirmation. 1 

There is one noteworthy innovation, however, in the 
Partidas, which was subsequently introduced widely into 
the torture codes of Europe, and which, in theory at least, 
greatly extended their sphere of action. This was the lia- 
bility of freemen as witnesses. When a man's evidence 
was vacillating and contradictor}^ so as to afford reason- 
able suspicion that he was committing perjury, all criminal 
judges were empowered to subject him to torture, so as to 
ascertain the truth, provided always that he was of low 
condition, and did not belong to the excepted classes. 3 

With all this, there are indications that Alfonso de- 
signed rather to restrict than to extend the use of torture, 
and, if his general instructions could have been enforced, 
there must have been little occasion for its employment 
under his code. In one passage, he directs that when the 
evidence is insufficient to prove a charge, the accused, if 
of good character, must be acquitted ; and in another, he 
orders its application only when common report is ad- 
verse to a prisoner, and he is shown to be a man of bad 
repute. 3 Besides, an accuser who failed to prove his charge 
was always liable to the lex talionis, unless he were prose- 
cuting for an offence committed on his own person, or for 
the murder of a relative not more distant than a brother or 
sister's child. 4 The judge, moreover, was strictly enjoined 
not to exceed the strict rules of the law, nor to carry the 
torture to a point imperilling life or limb. If he deviated 
from these limits, or acted through malice or favoritism, 
he was liable to a similar infliction on his own person, or 
to a penalty greater than if he were a private individual. 5 

1 Partidas, P. vn. Tit. xxx. 1. 16. 

2 Ibid. P. in. Tit. xvi. 1. 43.— P. vn. Tit. xxx. I. 8. 

3 Partidas, P. vn. Tit. i. 1. 26, "home mal enfamado."— P. vn. Tit. xxx. 
1. 3, " Et si fuere home de mala fame 6 vil." 

4 Ibid. P. vn. Tit. i. 1. 26. 

6 Ibid. P. vn. Tit. xxx. 1. 4 ; Tit. ix. 1. 16. 



316 TORTURE. 

The liability of witnesses was further circumscribed by 
the fact that in cases involving corporal punishment, no 
one could be forced to bear testimony who was related to 
either of the parties as far as the fourth degree of consan- 
guinity, in either the direct or collateral lines, nor even 
when nearly connected by marriage, as in the case of 
fathers-in-law, step-children, &C. 1 Orders to inflict torture, 
moreover, were one of the few procedures which could be 
appealed from in advance. 3 Several of these limitations 
became generally adopted throughout Europe. We shall 
see, however, that they afforded little real protection to the 
accused, and it is more than probable that they received as 
little respect in Spain as elsewhere. 

There were many varieties of torture in use at the pe- 
riod, but Alfonso informs us that only two were commonly 
employed, the scourge and the strappado, or hanging the 
prisoner by the arms while his back and legs were loaded 
with heavy weights. 3 The former of these, however, seems 
to be the only one alluded to throughout the code. 

As a whole, the Partidas were too elaborate and too 
much in advance of the wants of the age to be successful 
as a work of legislation. With the death of Alfonso they 
became discredited, but still retained a certain amount of 
authority, and, a hundred years later, in the Ordenamiento 
di Alcala of Alfonso XI., issued in 1348, they are referred 
to as supplying all omissions in subsequent codes. 4 

It is probable that, in his system of torture, Alfonso the 
Wise merely regulated and put into shape the customs 
prevalent in his territories, for the changes in it which 
occurred during the succeeding three or four centuries are 
merely such as can be readily explained by the increasing 
influence of the revived Roman jurisprudence, and the intro- 
duction of the doctrines of the Inquisition with respect to 

1 Partidas, P. vn. Tit. xxx. I. 9. 

2 Ibid. P. in. Tit. xxiii. 1. 13. 

3 Ibid. P. vu. Tit. xxx. 1.1. 

4 Ordenamiento di Alcala, Tit. xxviii. 1. 1. 



SPAIN. 31T 

criminal procedures. In the final shape which the adminis- 
tration of torture assumed in Spain, as described by Yilla- 
diego, an eminent legist writing about the year 1600, it was 
only employed when the proof was strong and yet not suffi- 
cient for conviction. No allusion is made to the torture of 
witnesses. The system of repeating the torture on succes- 
sive days, if the accused recanted during the interval, had 
apparently fallen into desuetude, for Villadiego condemns 
the cruelty of some judges who divide the torture into 
three days in order to render it more effective, since, after 
a certain prolongation of torment, the limbs begin to lose 
their sensibility, which is recovered after an interval, and 
on the second and third days»they are more sensitive than 
at first. This he pronounces rather a repetition than a 
continuation of torture, and repetition was illegal unless 
rendered necessary by the introduction of new testimony. 
As in the thirteenth century, nobles, doctors of laws, preg- 
nant women, and children under fourteen were not liable, 
except in cases of high treason and some other heinous 
offences, among which the bigotry of the age had introduced 
heresy. The clergy also were now exempted, unless pre- 
viously condemned as infamous, and advocates engaged in 
pleading enjoyed a similar privilege. The Partidas allow 
torture in the investigation of comparatively trivial offences, 
but Yilladiego states that it should only be employed in 
the case of serious crimes, entailing bodily punishment 
more severe than the torture itself, and torture was worse 
than the loss of the hands. Thus when only banishment, 
fines, or imprisonment were involved, it could not be used.^ 
The penalties incurred by judges for its excessive or im- 
proper application were almost identical with those pre- 
scribed by Alfonso, and the limitation that it should not 
be allowed to endanger life or limb was only to be exceeded 
in the case of treason, when the utmost severity was per- 
missible. Many varieties were in use, but the most common 
were the strappado and pouring water down the throat ; 

27* 



318 TORTURE. 

but when the accused was so weak as to render these dan- 
gerous, fire was applied to the soles of the feet ; and the use 
of the scourge was not unusual. As in the ancient laws, 
the owner of slaves was entitled to compensation when his 
bondmen were unjustly tortured. If there was no justifi- 
cation for it, he was reimbursed in double the estimated 
value ; if the judge exceeded the proper measure of torment, 
he made it good to the owner with another slave. 1 

In turning to the other barbarian races who inherited the 
fragments of the Roman empire, we find that the introduc- 
tion of torture as a recognized and legal mode of investiga- 
tion was long delayed. Under the Merovingians, as we 
have seen, its employment, though not infrequent, was 
exceptional and without warrant of law. When the slow 
reconstruction of society at length began, its first faint 
trace is to be found in a provision respecting the crime of 
sorcery and magic. These were looked upon with "peculiar 
detestation, as unpardonable offences against both God 
and man. It is no wonder then if the safeguards which 
the freeman enjoyed under the ordinary modes of judicial 
procedure were disregarded in the case of those who vio- 
lated every law, human and divine. The legislation of 
Charlemagne, indeed, was by no means merciful in its gen- 
eral character. His mission was to civilize, if possible, the 
savage and turbulent races composing his empire, and he' 
was not over nice in the methods selected to accomplish 
the task. Still, he did not venture, even if he desired, to 
prescribe torture as a means of investigation, except in the 
f case of suspected sorcerers, for whom, moreover, it is 
ordered indirectly rather than openly. 3 Yet, by this time, 

1 Villadiego, Gloss, ad Fuero Juzgo, Lib. vi. Tit. i. 1. 2, Gloss, c. d, e,f, g. 
— Lib. vi. Tit. i. 1. 5, Gloss. 5, c. 

2 Capit. Carol. Mag. II. arm. 805, § xxv. (Baluz.). No other interpretation 
can well be given of the direction '' diligentissime examinatione constrin- 
gantur si forte confiteantur malorum quae gesserunt. Sed tali moderatione 
fiat eadem districtio ne vitam perdant." 



THE CARLOVINGIANS. 319 

the personal inviolability of the freeman was gone. The 
infliction of stripes and of hideous mutilations is frequently 
directed in the Capitularies, and even torture and banish- 
ment for life are prescribed as a punishment for insulting 
bishops and priests in church. 1 

This apparent inconsistency is easily explicable. Though 
there was no theoretical objection to torture as a process 
of investigation, yet there was no necessity for its employ- 
ment as a means of evidence. That the idea of thus using 
it in matters of great moment was not unfamiliar to the 
men of that age is evident when we find it officially stated 
that the accomplices of Bernard, King of Italy, in his 
rebellion against Louis-le-Debonnaire, in 81 7, on their cap- 
ture confessed the whole plot without being put to the tor- 
ture. 2 Such instances, however, were purely exceptional. 
In ordinary matters, there was a complete system of attack 
and defence which supplemented all deficiencies of testi- 
mony in doubtful cases. Sacramental purgation, the wager 
of battle, and the various forms of vulgar ordeals were not 
only primeval customs suited to the feelings and modes of 
thought of the race, but they were also much more in 
harmony with the credulous faith inculcated by the church, 
and the church had by this time entered on the career of 
temporal supremacy which gave it so potential a voice in 
fashioning the institutions of European society. For all 
these, the ministrations of the ecclesiastic were requisite, 
and in many of them his unseen interference might prove 
decisive. On the other hand, the humane precepts which 
forbade the churchman from intervening in any manner 
in judgments involving blood precluded his interference 
with the torture chamber ; and in fact, while torture was 

1 Capitul. Lib. vi. cap. cxxix. Si quis episcopo vel aliis ministris intra 
ecclesiam injuriam fecerit, jubemus eum torinentis subjectum in exilio mori 
.... Sin autem contumeliam tantum fecerit, tormentis et exilio tradatur. 

a Non solum se tradunt sed ultro etiara non admoti quaestionibus oranem 
technam hujus rebellionis detegunt. — Goldast. Constit. Imp. I. 151. 



320 TORTURE. 

yet frequent under the Merovingians, the canons of various 
councils prohibited the presence of any ecclesiastic in places 
where it was administered. 1 Every consideration, there- 
fore, would lead the church in the ninth century to prefer 
the milder forms of investigation, and to use its all-powerful 
influence in maintaining the popular belief in them. The 
time had not yet come when, as we shall see hereafter, the 
church, as the spiritual head of feudal Christendom, would 
find the ordeal unnecessary and torture the most practi- 
cable instrumentality to preserve the purity of faith and the 
steadfastness of implicit obedience. 

In the ninth century, moreover, torture was incompatible 
with the forms of judicial procedure handed down as relics 
of the time when every freeman bore his share in the public 
business of his sept. Criminal proceedings as yet were 
open and public. The secret inquisitions which afterwards, 
became so favorite a system with lawyers did not then 
exist. The mallum, or court, was perhaps no longer held 
in the open air, 3 nor were the freemen of the district con- 
strained as of old to be present, 3 but it was still free to 

1 Non licet presbytero nee diacono ad trepalium ubi rei torquentur stare. 
— Concil. Autissiodor. arm. 578, can. xxxiii. 

Ad locum examinationis reorum nullus clericorum accedat. — Concil. 
Matiscon. II. arm. 585, can. xix. 

3 Under Charlemagne and Louis-le-Debonnaire seems to have commenced 
the usage of holding the court under shelter. Thus Charlemagne, " Ut in locis 
ubi mallus publicus haberi solet, tectum tale constituatur quod in hiberno 
et in aestate observandus esse possit" — (Capit. Carol. Mag. II. ann. 809, 
§ xiii.). See also Capit. I. eod. ann. § xxv. Louis-le-Debonnaire prohibits 
the holding of courts in churches, and adds " Volumus utique ut domus a 
comite in locum ubi mallum tenere debet construatur, ut propter calorem 
sol is et pluviam publica utilitas non remaneat." — (Capit. Ludov. Pii. I. ann. 
819, § xiv.) 

3 In 769, we find Charlemagne commanding the presence of all freemen in 
the general judicial assembly held twice a year, " Ut ad mallum venire nemo 
tardet, unum circa aestatem et alterum circa autumnum." At others of less 
importance, they were only bound to attend when summoned, " Ad alia vero, 
si necessitas fuerit, vel denunciatio regis urgeat, vocatus venire nemo tardet.'' 
—(Capit. Carol. Mag. ann. 769, § xii.) 



FEUDALISM. 321 

every one. The accuser and his witnesses were confronted 
with the accused, and the criminal must be present when 
his sentence was pronounced. 1 The purgatorial oath was 
administered at the altar of the parish church ; the ordeal 
was a public spectacle ; and the judicial duel drew thousands 
of witnesses as eager for the sight of blood as the Roman 
plebs. These were all ancestral customs, inspiring im- 
plicit reverence, and forming part of the public life of the 
community. To substitute for them the gloomy dungeon 
through whose walls no echo of the victim's screams could 
filter, where impassible judges coldly compared the inco- 
herent confession wrung out by insufferable torment with 
the anonymous accusation or the depositions of unknown 
witnesses, required a total change in the constitution of 
society. 

The change was long in coming. Feudalism arose and 
consolidated its forces on the ruins of the Carlovingian em- 
pire without altering the principles upon which the earlier 
procedures of criminal jurisdiction had been based. As 
the local dignitaries seized upon their fiefs and made them 
hereditary, so they arrogated to themselves the dispensa- 
tion of justice which had formerly belonged to the central 
power, but their courts were still open to all. Trials were 
c^iducted in public upon well-known rules of local law 
and custom ; the fullest opportunities were given for the 
defence; and a denial of justice authorized the vassal to 
renounce the jurisdiction of his feudal lord and seek a 
superior court. 

In 809, he desired that none should he forced to attend unless he had busi- 
ness, "tit nullus ad placitura venire cogatur, nisi qui caussam hahet ad 
quaerendam." — (Capit. I. ann. 809, § xiii.) 

In 819, Louis ordered that the freemen should attend at least three courts 
a year, "et nullus eos amplius placita observare compellat, nisi forte quilibet 
aut accusatus fuerit, aut alium accusaverit, aut ad testimonium perhibendum 
vocatus fuerit." — (Capit. Ludov. Pii. V. ann. 819, § xiv.) 

1 Placuit ut adversus absentes non judicetur. Quod si factus fuerit pro- 
lata sententia non valebit. — Capitul. Lib. v. § cccxi. 



322 TORTURE. 

Still, as under the Merovingians, torture, though un- 
recognized by law, was occasionally employed as an extra- 
ordinary element of judicial investigation, as well as a 
means of punishment to gratify the vengeance of the irre- 
sponsible and cruel tyrants who ruled with absolute sway 
over their petty lordships. A few such instances occur in 
the documents and chronicles of the period, but the terms 
in which they are alluded to show that they were regarded 
as irregular. 

Thus, it is related of Wenceslas, Duke of Bohemia, in 
the early part of the tenth century, that he destroyed the 
gibbets and fearful implements of torture wherewith the 
cruelty of his judges had been exercised, and that he never 
allowed them to be restored. 1 An individual case of torture 
which occurred in 1017 has chanced to be preserved to us 
by its ending in a miracle, and being the occasion of the 
canonization of a saint. A pious pilgrim, reputed to belong 
to the royal blood of Scotland, while wandering on the 
marches between the Bavarians and the Moravians, was 
seized by the inhabitants on suspicion of being a spy, and, 
to extort a confession, was exposed to a succession of tor- 
ments which ended by hanging him on a withered tree until 
he died. The falsity of the accusation and the sanctity of 
the victim were manifested by the uninterrupted growthlbf 
his hair and nails and the constant flowing of blood from a 
wound, while the dead tree suddenly put forth leaves and 
flowers. Margrave Henry of Bavaria had him reverently 
buried, and he was duly enrolled in the catalogue of saints. 3 
In the celebrated case, also, of the robbery of the church 

1 Regnabat autem in Praga Wenezlaus Deo et hominibus acceptus, qui 
inter caetera quae de eo praedicantur, mirabilia torinentorum genera et pati- 
bula suspendiis hominum praeparata dirui fecit, ne immanitas judieum ex- 
creseeret, nee reparari suo tempore permisit — Annalist. Saxo ann. 928. 
- 3 In Bavariorum confinia atque Maravensium quidain peregrinus, nomine 
Colomannus, ab incolis, quasi speculator esset, capitur, et ad professionem 
culpae, quam non meruit, diris castigationibus compellitur, etc. — Dithmari 
Chron. Lib. vn. ad fin. 



THE TWELFTH CENTURY. 323 

of Laon, about the year 1100, the suspected thief was, by 
direction of the bishop, basted with hot lard, in order to 
extort a confession, 1 and though this was unsuccessful, a 
perseverance in the effort finally effected its purpose. 2 

These are evidently rather sporadic and exceptional cases 
than indications of any systematic introduction of the prac- 
tice. A more significant allusion, however, is found in the 
reproof administered, about 1125, by Hildebert, Bishop of 
le Mans, to one of his priests, who had been concerned in 
the torture of a suspected thief, for the purpose of extract- 
ing a confession. Hildebert argues that the infliction of 
torture for confession is a matter for judicial decision and 
not of church discipline, and therefore not fit for a clerk to 
be engaged in. 3 This would seem to show that it occasion- 
ally was a recognized means of proof in the lay tribunals of 
the period, though as yet not favored by the church. If so, 
no record of its introduction or evidence of its customary 
use has been preserved to us, though there is abundant 
evidence of its employment as a punishment and for the 
extortion of money. 

As a punishment legally inflicted, we find it prescribed, 
in 1168, by Frederic Barbarossa in cases of petty thefts,* 
and in the next century by Frederic II. as a penalty for 
high treason. 5 Special cases, too, may be instanced, where 
its infliction on a large scale shows that the minds of men 
were not unfamiliar with its use. Thus when, in 1125, the 

1 Ille nudatum terraeque prostratum atque ligatum, lardo calido fecit per- 
fundi, sed nihil extorquere potuit. — Herniannus de S. Mariae Lauden. Mirac. 
(Jureti Observat. in Ivon. Epist. lxxiv.). 

- Guibert. Noviogent. de Vita Sua, cap. xvi. 

3 Reos tormentis afficere vel suppliciis extorquere confession em censura 
curiae est non ecclesiae disciplina. Unde et ab ejus animadversione abstinere 
debuisti quern pecuniam tuam furto suspicaris asportasse ; neque enim car- 
nifex es sed sacrifex. — Hildebert. Cenoman. Epst. xxx. 

4 Si quis quinque solidos valens aut plus fuerit furatus laqueo suspendatur : 
si minus, scopis et forcipe excorietur et tundatur. — Feudor. Lib. II. Tit. 
xxvii. § 8. 

' Ered. II. Lib. Rescript, n. §§ 1, 6. (Goldast, Constit. Imp. n. 54.) 



324 TORTURE. 

inhabitants of Erfurt were guilty of some outrages on the 
imperial authority, and the town was besieged and captured 
by the Emperor Lothair, the chronicler relates that large 
numbers of the citizens were either killed, blinded, or tor- 
tured in various ways by the vindictive conqueror. 1 

So summary and effective a mode of forcing the weak 
and unprotected to ransom themselves was not likely to be 
overlooked in those ages of violence, and though the extra- 
judicial use of torture is foreign to our purpose, yet, as 
showing how men educated themselves in its employment, 
it may be worth while to allude briefly to this aspect of 
the subject. Thus Duke Swantopluck of Bohemia, in a 
marauding expedition into Hungary in 1108, caused to be 
racked or put to death all prisoners who could not purchase 
escape by heavy ransoms.* At the same period, Germany 
is described to us by an eyewitness as covered with feudal 
chieftains who lived a life of luxury by torturing the mis- 
erable wretches that could scarce obtain bread and water 
for their own existence. 3 In England, the fearful anarchy 
which prevailed under King Stephen encouraged a similar 
condition of affairs. The baronial castles which then 
multiplied so rapidly became mere dens of robbers who 
ransacked the country for all who had the unfortunate 
reputation of wealth. From these they extracted the last 
penny by tortures ; and the chronicler expatiates on the 
multiplicity and horrid ingenuity of the torments devised — 
suspension by the feet over slow fires; hanging by the 
thumbs ; knotted ropes twisted around the head ; crucet- 
houses, or chests filled with sharp stones, in which the 
victim was crushed ; sachentages, or frames with a sharp 

1 Trucidatis aliis, aliis caecatis, nonnullis diversis tormentorum generibus 
excruciatis, multisque per diversis fugientibus. — Erphurdianus Variloquus 
ann. 1125. • 

2 Alios interfeci jussit, alios in eculeo suspensos, paucis vero, accepta 
magna peeunia, vitam concessit. — Cosmae Pragens. Lib. in. ann. 1108. 

3 Ab his qui pane solo et aqua victitare solebant, delicias sibi ministrari 
tormentis exigebant. — Annalist. Saxo ann. 1123. 



DISAPPROVED BY THE CHURCH. 325 

iron collar preventing the wearer from sitting, lying, or 
sleeping ; dungeons filled with toads and adders ; slow 
starvation, &c. &C. 1 Such experiments were a fitting educa- 
tion for the times that were to come. 

In all this, however, there is no evidence of the revival 
of torture as a means of legal investigation. The commu- 
nity was satisfied with the old barbaric forms of trial, and 
the church, still true to its humanizing instincts, lost no 
opportunity of placing the seal of its disapprobation on 
the whole theory of extorting confessions. The great name 
of Gregory I. was on record, as early as the sixth century, 
denouncing as worthless a confession extorted by incarce- 
ration and hunger. 2 When Nicholas I., who did so much 
to build up ecclesiastical power and influence, addressed, 
in 866, his well-known epistle to the Bulgarians to aid and 
direct them in their conversion to the true faith, he recites 
that he is told that in cases of suspected theft, their courts 
endeavor to extort confession by stripes, and by pricking 
with a pointed iron. This he pronounces to be contrary 
to all law, human and divine, for confessions to be valid 
should be spontaneous; and he argues at some length on 
the uncertainty of the system of torture, and the injustice 
to which it leads, concluding with a peremptory prohibition 
of its continuance. 3 

In the first half of the same century, the manufacturers 

1 Anglo-Saxon Chronicle, ann. 1137. 

2 Si tamen eamdem confessionem subtilitas examinations ex occultis 
elicerit, et non afflictio vehemens extorqueret ; quae frequenter hoc agit ut 
noxios se fateri cogantur etiam innoxii. Nam postquam praefatus episcopus, 
ut dicitur, cruciari custodia creniarique fame se asserit, scire debetis, si ita 
est, utrum noceat si sic fuerit extorta confessio. — Gregor. PP. I. Lib. viii. 
Epist. xxx. 

11 Nicolai PP. I. Epist. xcvii. § 86. Quam rem nee divina lex nee hu- 
mana prorsus admittit, cum non invita sed spontanea debeat esse confessio 
.... Relinquite itaque talia, et qua) hactenus insipientes exercuistis, mc- 
dullitus execramini, quem enim fructum habuistis tunc in illis in quibus 
non erubescitis? 

28 



326 TORTURE. 

of the False Decretals had attributed to Alexander I. an 
epistle designed to protect the church from pillage and 
oppression, in which that pontiff is made to threaten with 
infamy and excommunication those who extort confessions 
or other writings from ecclesiastics by force or fear, and 
to lay down the general rule that confessions must be 
voluntary and not compulsory. 1 On the authority of this, 
Ivo of Chartres, at the commencement of the twelfth cen- 
tury, declares that men in holy orders cannot be forced 
to confess f and half a century later, Gratian lays down 
the more general as well as more explicit rule that no con- 
fession is to be extorted by the instrumentality of torture. 3 
This position was consistently maintained until the revival 
of the Roman law familiarized the minds of men with the 
procedures of the imperial jurisprudence, when the policy 
of the church altered, and it yielded to the temptation of 
obtaining so useful a means of reaching and proving the 
otherwise impalpable crime of heresy. 

The latter half of the twelfth century saw the study of 
the civil law prosecuted with intense ardor, and in the 
beginning of the thirteenth, Innocent III. struck a fatal 
blow at the barbaric systems of the ordeal and sacramental 
compurgation by forbidding the rites of the church to the 
one and altering the form of oath customary to the other. 
The unreasoning faith which had reposed confidence in the 
boiling caldron, or the burning ploughshare, or the trained 
champion as the special vehicle of Divine judgment, was 
fading before the Aristotelian logic of the schools, and dia- 
lectical skill could not but note the absurdity of acquitting 

1 Pseudo-Alexand. decret." Omnibus orthodoxis" — Confessio vero in 
talibus non compulsa sed spontanea fieri debet. . . . Confessio enim non 
extorqueri debet in talibus, sed potius sponte profiteri, pessimum est enim 
de suspicione aut extorta confessione quemquam judicare. 

3 Ministrorum confessio non sit extorta sed spontanea. — Ivon. Panorm. 
iv. cxviii. 

3 Quod vero confessio cruciatibus extorquenda non est. — Decreti Caus. xv. 
q. 6, can. 1. 



INFLUENCE OP THE ROMAN LAW. 327 

a culprit because he could beg or buy two, or five, or eleven 
men to swear to their belief in his oath of denial. 

Yet with all these influences at work, the ancestral cus- 
toms maintained their ground long and stubbornty. It is 
not until the latter half of the thirteenth century that the 
first faint traces of legalized torture are to be found in 
France, at whose University of Paris for more than a 
hundred years the study of the Pandects had become the 
absorbing topic, and where the constantly increasing power 
of the crown found its most valuable instruments in the 
civil lawyers, and its surest weapon against feudalism in 
the extension of the royal jurisdiction. In Germany, the 
progress was even slower. The decline of the central au- 
thority, after the death of Frederic Barbarossa, rendered 
any general change impossible, and made the absolutist 
principles of the imperial jurisprudence especially distaste- 
ful to the crowd of feudal sovereigns, whose privileges 
were best supported by perpetuating organized anarchy. 
The early codes, therefore, the Sachsenspiegel, the Schwa- 
benspiegel, the Kayser-Recht, and the Richstich Landrecht, 
which regulated the judicial proceedings of the Teutonic 
nations from the thirteenth to the fifteenth centuries, seem 
to know no other mode of deciding doubtful questions than 
sacramental purgation and the various forms of ordeal. 
During the latter portion of this period, it is true, torture 
begins to appear, but it is as an innovation. 

The first indications of the modern use of torture show 
distinctly that its origin is derived from the civil law. In 
the Latin kingdoms of the East, the Teutonic races were 
brought into contact with the remains of the old civiliza- 
tion, impressive even in its decrepitude. It was natural 
that, in governing the motley collection of Greeks, Syri- 
ans, and Franks, for whom they had to legislate, they 
should adopt some of the institutions which they found 
in force amid their new possessions, and it is only sur- 
prising that torture did not form a more prominent feature 



328 TORTURE. 

in their code. -The earliest extant text of the Assises de 
Jerusalem is not older than the thirteenth century, and the 
blundering and hesitating way in which it recognizes, in a 
single instance, the use of torture shows how novel was the 
idea of such procedure to the feudal barons, and how little 
they understood the principles governing its application. 
When a murderer was caught in the act by two witnesses, he 
could be promptly hanged on their testimony, if they were 
strangers to the victim. If, however, they were relatives, 
their testimony was held suspect, and the confession of the 
accused was requisite to his conviction. To obtain this, he 
was subjected to torture for three days ; if he confessed, he 
was hanged ; if obdurate, he was imprisoned for a year and a 
day, with the privilege of clearing himself during that 
period by the ordeal of the red-hot iron. If he declined 
this, and if during his confinement no additional evidence 
was procured, he was acquitted and could not be again 
appealed for the murder. 1 

This shows the transition state of the question. The 
criminal is caught with the red hand and the evidence of 
guilt is complete, save that the witnesses may be interested ; 
confession thus becomes requisite, yet the failure to extort 
it by the most prolonged torment does not clear the 
accused ; the ordeal is resorted to in order to supplement 
the torture, and solve the doubts which the latter could not 
remove; and finally, the criminal is absolved though he 
dare not trust the judgment of God, and though the uncer- 
tainties in which torture had left the case are not removed. 

Italy was the centre from which radiated the influences 
of the Roman law throughout Western Europe, and, as 
might be expected, it is to Italy that we must look for the 
earliest incorporation of torture in the procedures of 
modern criminal j urisprudence. Probably the first instance 
of its use is to found in the legislation of Frederic II. for 

1 Assises de Jerusalem, Baisse Court, cap. cclix. 



REVIVED IN ITALY. 329 

his Neapolitan provinces, promulgated in 1231 ; and the 
mode in which it is prescribed shows that it was as yet but 
sparingly employed. As Frederic was the earliest secular 
legislator who discountenanced and restricted the various 
forms of the ordeal, it was natural that, with his education 
and temperament, he should seek to replace them with the 
system of the Roman codes which he so much admired. 

When a secret murder or other heinous crime was com- 
mitted, and the most stringent investigation could not con- 
vict the perpetrators, if the weight of suspicion fell on per- 
sons of humble station and little consequence, they could 
be tortured for confession. If no torment could wring 
from them an acknowledgment of guilt, or if, as often 
happened ("prout accidere novimus in plerisque"), their 
resolution gave way under insufferable torment and they 
subsequently recanted, then the punishment, in the shape 
of a fine, was inflicted on the district where the crime had 
occurred. 1 From this it is evident that torture was not 
exactly a novelty, but that as yet it was only ventured 
upon with the lowest and most unprotected class of society, 
and that confession during its infliction was not regarded as 
sufficient for conviction, unless subsequently persisted in. 

During the remainder of the century, the statutes of 
many of the Italian cities show the gradual introduction 
of torture to replace the barbarian processes which were 
not indigenous, 2 and which the traditional hate of the Italian 
States for the Tedeschi was not likely to render popular. 
That by the middle of the century, indeed, the practical 
applications of torture had been profoundly studied and 
were thoroughly understood in all their most inhuman 
ramifications is sufficiently evident from the accounts which 
we possess of the fearful cruelties habitually practised by 
petty despots such as Eccelino di Romano. 3 

1 Constit. Sicular. Lib. I. Tit. xxvii. 

2 Du Boys, Droit Criminel des Peup. Mod. II. 405. 

3 Monach. Paduan. Chron. Lib. n. ann. 1252-3 (Urstisii Scrip. Rar. Ger- 

28* 



330 TORTURE. 

About this time we also find, in the increasing rigor and 
gradual systematizing of the Inquisition, an evidence of 
the growing disposition to resort to torture, and a power- 
ful element in extending and facilitating its introduction. 
The church had been actively engaged in discountenancing 
and extirpating the ordeal, and it now threw the immense 
weight of its authority in favor of the new process of ex- 
torting confessions. When Frederic II., in 1221, issued 
from Padua his three constitutions directed against heresy, 
cruel and unsparing as they were, they contained no indica- 
tion that torture was even contemplated as a mode of inves- 
tigation. In fact, suspected parties, against whom insuffi- 
cient evidence was brought, were directed to prove their 
innocence by some fitting mode of purgation. 1 In 1252, 
however, when Innocent IV. issued his elaborate instruc- 
tions for the guidance of the Inquisition in Tuscany and 
Lombardy, he ordered the civil magistrates to extort from 
all heretics by torture not merely a confession of their own 
guilt, but an accusation of all who might be their accom- 
plices ; and this derives significance from his reference to 
similar proceedings as customary in trials of thieves and 
robbers. 3 It shows the progress made during the quarter 
of the century, and the high appreciation entertained by 
the church for the convenience of the new system. 

As yet, however, this did not extend beyond Italy. There 

man. pp. 594-5). — Quotidie diversis generibus tormentorum indiffenter tarn 
majores quam minores a carnificibus necabuntur. Voces terribiles claman- 
tum in tormentis die noctuque audiebantur de altis palatiis. . . . Quotidie 
sine labore, sine eonscientise remorsione magna tormenta et inexcogitata 
corporibus hominum infligebat, etc. 

1 Congrua purgatione. — Goldast. Constit. Imp. I. 293-5. 

3 Teneatur praeterea potestas seu rector omnes haareticos quos captos 
habuerit, cogere citra membri diminutionem et mortis periculura, tanquam 
vere latrones et liomicidas animarum et fures sacramentorum Dei et fidei 
Cbristianae, errores suos expresse fateri et accusare alios haereticos quos 
sciunt, et bona eorum, et credentes et receptatores et defensores eorum, sicut 
coguntur fures et latrones rerum temporalium accusare suos complices et fa- 
tori maleficia quae fecerunt. — Innocent. IV. Leg. et Const, contra Hseret. § 26. 



INFLUENCE OP THE INQUISITION. 331 

is extant a tract, written not long after this time, contain- 
ing very minnte instructions as to the established mode of 
dealing with the sect of Albigenses known as the " Poor 
Men of Lyons." It gives directions to break down their 
strength and overcome their fortitude by solitary confine- 
ment, starvation, and terror, but it abstains from recom- 
mending the infliction of absolute and direct torture, while 
its details are so full that the omission is sufficient proof 
that such measures were not then customary. 1 

The whole system of the Inquisition, however, was such 
as to render the resort to torture inevitable. Its proceedings 
were secret ; the prisoner was carefully kept in ignorance 
of the exact charges 'against him, and of the evidence upon 
which they were based. He was presumed to be guilty, and 
his judges bent all their energies to force him to confess. 
To accomplish this, no means were too base or too cruel. 
According to the tract just quoted, pretended sympathizers 
were to be let into his dungeon, whose affected friendship 
might entrap him into an unwary admission; officials armed 
with fictitious evidence were directed to frighten him with 
assertions of the testimony obtained against him from sup- 
posititious witnesses ; and no resources of fraud or guile 
were to be spared in overcoming the caution and resolution 
of the poor wretch whose mind, as we have seen, had been 
carefully weakened by solitude, suffering, hunger, and terror. 
From this to the rack and estrapade the step was easily 
taken, and was not long delayed. In 1301, we find even 
Philippe-le-Bel protesting against the cruelty of the In- 
quisition, and interfering to protect his subjects from the 
refinements of torture to which, on simple suspicion of 
heresy, unfortunate victims were habitually exposed. 3 Yet 

1 Tract, de Haeres. Paup. de Lugd. (Martene et Durand V. 1787). In the 
tract, Frederic II., who died in 1250, is spoken of as "quondam imperator." 

3 Clamor validus et insinuatio luctuosa fidelium subditorum . . . processus 
suos in inquisitionis negotio a captionibus, quaastionibus et excogitatis tor- 
mentis ineipiens personas quas pro libito asserit hasretica labe notatas, abne- 



332 TORTURE. 

when, a few years later, the same monarch resolved upon 
the destruction of the Templars, he made the Inquisition 
the facile instrument to which he resorted, as a matter of 
course, to extort from De Molay and his knights, with 
endless repetition of torments, the confessions which were 
to recruit his exhausted treasury with their broad lands 
and accumulated riches. 1 

The history of the Inquisition, however, is too large a 
subject to be treated here in detail, and it can only be 
alluded to for the purpose of indicating its influence upon 
secular law. That influence was immense. The legists who 
were endeavoring to eradicate the feudal customs could not 
expect the community to share their admiration of the 
Roman law, and naturally grasped with eagerness the ad- 
vantage offered them in adducing the example of ecclesi- 
astical institutions. In founding their new system, they 
could thus hardly avoid copying that which presented itself 
under all the authority of an infallible church, and which 
had been found to work so successfully in unveiling the 
most secret of hidden crimes, those of faith and belief. 

About the time when Innocent IY. was prescribing tor- 
ture in Italy, we find the first evidence of its authoritative 
use in France as an ordinary legal procedure. In Decem- 
ber, 1254, an assembly of the nobles of the realm at Paris 
adopted an ordonnance regulating many points in the 
administration of justice. Among these, occurs an order 
that persons of good reputation, even though poor, shall 
not be put to the torture on the evidence of one witness, 
lest, on the one hand, they may be forced to convict them- 
selves falsely, or, on the other, to buy themselves off from 
the infliction. 3 

gasse Christum . . . . vi vel metu tormentorum fateri compellit. — Lit. Philip. 
Pulchri, ap. Raynouard, Monuments Historiques relatifs a la Condamnation 
des Chevaliers du Temple, pp. 37-8. 

1 The fearful details of torture collected by Rnynouard (op. eit.) show that 
the Inquisition by this time was fully experienced in such work. 

2 Personas autem honestas vel bonae famas, etiam si sint pauperes, ad 



INTRODUCTION IN FRANCE. 333 

This would seem to indicate that the system of judicial 
torture was so completely established that its evils and 
abuses had begun to render themselves apparent and to 
require restrictive legislation. Yet the contemporaneous 
remains of jurisprudence show no trace of the custom, and 
some of them are of a nature to render their silence a 
negative proof of no little weight. To this period, for in- 
stance, belongs the earliest extant coutumier of Normandy, 
published by Ludewig, and it contains no allusion to tor- 
ture. The same may be said of the For de Beam, granted 
in 1288, and recently printed by MM. Mazure and Hatoulet, 
which is very full in its details of judicial procedure. The 
collection of the laws of St. Lo.uis, known as the Etablisse- 
inents, is likewise free from any instructions or directions 
as to its application, though it could scarcely have been 
omitted, had it formed part of the admitted jurisprudence 
of the age. It may be argued, indeed, that these codes 
and laws assume the existence of torture, and therefore 
make no reference to it, but such an argument would not 
hold good with respect to the books of practice which 
shrewd and experienced lawyers commenced at that time 
to draw up for the guidance of courts in the unsettled 
period of conflict between the ancient feudal customs and 
the invading civil law. For instance, no text-book can well 
be more minute than the "Livres de Jostice et de Plet," 
written about the year 1260, by a lawyer of the school of 
Orleans, then celebrated as the headquarters of the study 
of the Imperial jurisprudence. He manifests upon almost 
every page his familiar acquaintance with the civil and 
canon law, and he could not possibly have avoided some 
reference to torture, if it had been even an occasional 
resource in the tribunals in which he pleaded, and yet he 
does not in any way allude to it. 

dictum testis unici, tormentis seu qusestionibus inhibemus, ne ob metum 
falsum confiteri, vel suam vexationeni redimere cornpellantur. — Fontanon, 
Edicts et Ordonn. I. 701. A somewhat different reading is given by Isam- 
bert, Anciennes Lois Francaises I. 270. 



334 TORTURE. 

The same conclusion is derivable from the " Coutumes 
du Beauvoisis," written about 1270 by Philippe de Beau- 
manoir. In his position as royal bailli, Beaumanoir had 
obtained the fullest possible familiarity with all the prac- 
tical secular jurisprudence of his day, and his tendencies 
were naturally in favor of the new system with which St. 
Louis was endeavoring to break down the feudal customs. 
Yet, while he details at much length every step in all the 
cases, civil and criminal, that could be brought into court, 
he makes no allusion to torture as a means of obtaining 
evidence. In one passage, it is true, he seems to indicate 
that a prisoner could be forced, while in prison, to criminate 
himself, but the terms employed indicate clearly that this 
was not intended to include the administration of torment. 1 
In another place, moreover, when treating of robberies, he 
directs that all suspected parties should be long and closely 
confined, but that, if they cannot be convicted by external 
evidence, they must at last be discharged. 3 All this is 
clearly incompatible with the theory of torture. 

The " Conseil" of Pierre de Fontaines, which was pro- 
bably written about the year 1260, affords the same nega- 
tive evidence in its full instructions for all the legal pro- 
ceedings then in use. In these three works, notwithstand- 
ing the reforms attempted by St. Louis, the wager of battle 
is still the recognized resource for the settlement of doubt- 
ful cases, wherein testimony is insufficient, and the legist 

' Cil qui est pris et mis en prison, soit por meffet ou por dete, tant comme 
il est en prison il n'est tenus a respondre a riens c'on li demande fors es 
cas tant solement por qui il fu pris. Et s'on li fet respondre autre coze 
contre sa volente, et sor ce qu'il allige qu'il ne veut pas respondre tant 
comme il soit en prison ; tout ce qui est fait contre li est de nule valeur, car 
il pot tout rapeler quand il est hors de prison. — Beaumanoir, cap. ui. § xix. 

2 Quant tel larrecin sunt fet, le justice doit penre toz les souspeconneus 
et fere moult de demandes, por savoir s'il porra fere cler ce qui est orbe. 
Et bien les doit en longe prison tenir et destroite, et toz cex qu'il ara 
souspechonneus par malvese renommee. Et s'il ne pot en nule maniere 
savoir le verite du fet, il les doit delivrer, se nus ne vient avant qui partie 
se voille fere d'aus accuser droitement du larrecin. — Ibid. cap. xxxi. § vi. 



INTRODUCTION IN FRANCE. 335 

seems to imagine no other solution. The form of trial 
is still public, in the feudal or royal courts, and every 
opportunity is given both for the attack and the defence. 
The work of De Fontaines, moreover, happens to furnish 
another proof that he wrote at the commencement of a 
transition period, during which the use of torture was in- 
troduced. In the oldest MSS. of his work, which are con- 
sidered to date from 1260 to 1280, there is a passage to the 
effect that a man convicted of crime may appeal if he has 
not confessed, or, when he has confessed, if it has been in 
consequence of some understanding (covent). In later MSS., 
transcribed in the early part of the fourteenth century, the 
word "covent" is replaced by u tourmenz, m thus showing 
not only the introduction of torture during the interval, 
but also that a conviction obtained by it was not final. 

The Ordonnance of 1254, indeed, as far as it relates to 
torture, is asserted by modern criticism to have been ap- 
plicable only to the bailliages of Beauvais and Cahors. 2 I 
do not know upon what facts this opinion is based, but 
the omission of Beaumanoir to allude to any such custom 
would seem to render doubtful its application to Beauvais. 
That it was limited to a great extent is more than probable ; 
for in the ordonnance as registered in the council of Be- 
ziers in 1255, the section respecting torture is omitted, 3 
and this would explain the silence preserved on the subject 
by all contemporary legal authorities. 

While giving due weight, however, to all this, we must 
not lose sight of the fact that the laws and regulations 
prescribed in royal ordonnances and legal text-books were 
practically applicable only to a portion of the population. 
All non-nobles, who had not succeeded in extorting special 

1 Se li hons n'est connoissans de son raesfet, ou s'il l'a coneu et ce a este 
par covent, s'en li fait jugement, apeler en puet. — Conseil, ch. xxii. art. 
28. (Edition Marnier, Paris, 1846.) 

3 L'Oiseleur, Les Crimes et les Peines, p. 113 (Paris, 1863). 

3 Baluz. Concil. Gall. Narbon. p. 75. 



336 TORTURE. 

privileges by charter from their feudal superiors, were ex- 
posed to the caprices of barbarous and irresponsible power. 
It was a maxim of feudal law that God alone could inter- 
vene between the lord and his villein — " Mes par notre usage 
n'a-il, entre toi et ton vilein, juge fors Deu" 1 — the villein 
being by no means necessarily a serf; and another rule 
prohibited absolutely the villein from appealing from the 
judgment of his lord. 3 Outside of law, and unauthorized 
by coutumiers and ordonnances, there must, under such 
institutions, have been habitually vast numbers of cases in 
which the impatient temper of the lord would seek a solu- 
tion of doubtful matters in the potent cogency of the rack 
or scourge, rather than waste time or dignity in endeavoring 
to cross-question the truth out of a quick-witted criminal. 

Still, as an admitted legal procedure, the introduction of 
torture was very gradual. The " Olim," or register of 
cases decided by the Parlement of Paris, extends, with 
some intervals, from 1255 to 1318, and the paucity of affairs 
in which torture was used shows that it could not have 
been habitually resorted to during this period. The first 
instance, indeed, only occurs in 1299 when the royal bailli 
of Senlis cites the mayor and jurats of that town before 
the Parlement, because in a case of theft they had applied 
the question to a suspected criminal ; and though theft was 
within their competence, the bailli argued that torture was 
an incident of " haute justice" which the town did not pos- 
sess. The decision was in favor of the municipality. 3 The 
next year (1300), we find a clerk, wearing habit and ton- 
sure, complaining that the royal officials of the town of 
Yilleneuve in Rouergue had tortured him in divers ways, 
with ropes and heavy weights, heated eggs and fire, so that 
he was crippled and had been forced to expend three hun- 

1 Conseil ch. xxi. art. 8. 

2 Ibid. art. 14. Et encor ne puisse li vileins fausser le jugement son 
seignor. 

3 Olim T. II. p. 451. 



EARLY OASES. 337 

dred livres Toumois in medicines and physicians. This, 
with other proper damages, he prays may be made good to 
him by the perpetrators, and the arret of the Parlement 
orders their persons and property to be seized, and their 
possessions valued, in order that the amount may be 
properly assessed among them. 1 Philippe-le-Bel, notwith- 
standing his mortal quarrel with the papacy — or perhaps 
in consequence of it — was ever careful of the rights and 
privileges of the clergy, among which the immunity from 
secular jurisdiction and consequently from torture was 
prominent. The case evidently turned upon that point. 

The third case does not present itself until 1306. Two 
Jews, under accusation of larceny by their brethren, com- 
plain that they had been illegally tortured by the bailli of 
Bourges, and though one of them under the infliction had 
confessed to complicity, the confession is retracted and 
damages of three thousand livres Tournois are demanded. 
On the other hand, the bailli maintains that his proceed- 
ings are legal, and asks to have the complainants punished 
in accordance with the confession. The Parlement adopts 
a middle course; it acquits the .Jews and awards no dam- 
ages, showing that ' the torture was legal and a retracted 
confession valueless. 3 

The fourth case, which occurs in 1307, is interesting 
as having for its reporter no less a personage than Guil- 
laume de Nogaret, the captor of Boniface VIII. A certain 
Guillot de Ferrieres, on a charge of robberj^, had been 
tried by the judge of Villelongue and Nicolas Bourges, 
royal chatelain of Mont-Ogier. The latter had tortured 
him repeatedly and cruelly, so that he was permanently 
crippled, and his uncle, Etienne de Ferrieres, Chatelain of 
Montauban, claims damages. The decision condemns 
Nicolas Bourges in a mulct of one thousand livres Tour- 
nois, half to Guillot for his sufferings and half to Stephen 

1 Oliin. III. 49-50. 2 Ibid. III. 185-G. 

29 



338 TORTURE 

for his expenses, besides a fine to the crown. 1 It is evident 
that judges were not allowed to inflict unlimited torment at 
their pleasure. 

The fifth case, occurring in 1310, may be passed over, as 
the torture was not judicial, but merely a brutal outrage 
by a knight on a noble damsel who resisted his importuni- 
ties : though it may be mentioned that of the fine inflicted 
on him, fifteen hundred livres Tournois enured to the crown, 
and only one hundred to the victim. 3 

The sixth case took place in 1312, when Michael de Poolay, 
accused of stealing a sum of money from Nicolas Loquetier 
of Rouen, was subjected to long imprisonment and torture 
at Chateau-Neuf de Lincourt, and was then brought to the 
Chatelet at Paris, where he was again examined without 
confession or conviction. Meanwhile, the real criminal 
confessed the theft, and Nicolas applies to the Parlement 
for the liberation of Michael, which is duly granted. 3 

A long interval then occurs, and we do not hear of tor- 
ture again until 1318, when Guillaume Nivard, a monejr- 
changer of Paris, was accused of coining, and tortured by 
the Prevot of the Chatelet. He contends that it was ille- 
gal, while the Prevot asserts that his jurisdiction empow- 
ered him to administer it. The Parlement investigates 
the case, and acquits the prisoner, but awards him no 
damages. 4 

1 Olim, III. 221-2. 2 Ibid. III. 505-6. 3 Ibid. III. 751-2. 

4 Ibid. III. 1299. — It is somewhat singular that torture does not appear 
to have been used In the trial of Enguerrand de Marigny, the principal 
minister of Philippe-le-Bel, sacrificed after his death to the hatred of Charles 
de Valois. The long endeavor of the young king to protect him, and the 
final resort of his enemies to the charge of sorcery, with the production of his 
miserable accomplices, would seem to render the case one particularly suited 
to the use of torture. See the detailed account of the trial in the " Grandes 
Chroniques de France" V. 212-220 (Paris, 1837). In 1315, Raoul de 
Presles, accused of causing the death of Philippe, was tortured. "Mais 
apres moult de paines et de torinens qu'il ot soufiert, ne pot on riens traire 
de sa bouche fors que bien, si fu franchement laissie aler, et ot moult de ses 
biens gastes et perdus." Ibid. p. 221. 



RESISTANCE OP FEUDALISM. 339 

The very commonplace and trivial character of these 
cases has its interest in showing that the practice of ap- 
pealing to the Parlement was not confined to weighty 
matters, and therefore that the few instances in which tor- 
ture was involved in such appeals afford a fair index of 
the rarity of its use during this period. These cases, too, 
have seemed to me worth reciting, as they illustrate the 
principles upon which its application was based in the new 
jurisprudence, and the tentative and uncertain character of 
the progress by which the primitive customs of the Euro- 
pean races were gradually becoming supplanted by the 
resuscitated Roman law. 

This progress had not been allowed to continue uninter- 
rupted by protest and resistance. In the closing days of 
the reign of Philippe-le-Bel, the feudal powers of France 
awoke to the danger with which they were menaced by the 
extension of the royal prerogative during the preceding 
half century. A league was formed, which seemed to 
threaten the existence of the institutions so carefully nur- 
tured by St. Louis and his successors. It was too late, 
however, and though the storm broke on the new and un- 
tried royalty of Louis Hutin, the crown lawyers were 
already too powerful for the united seigneurie of the king- 
dom. When the various provinces presented their com- 
plaints and their demands for the restoration of the old 
order of things, they were met with a little skilful evasion, 
a few artful promises, some concessions which were readily 
withdrawn, and negatives carefully couched in language 
which seemed to imply assent. 

Among the complaints, we find that the introduction of 
torture was opposed as an innovation upon the established 
rights of the subject, but the lawyers who drew up the 
replies of the king took care to infringe as little as they 
could upon a system which their legal training led them 
to regard as an immense improvement in procedure, and 
which enabled them to supersede the wager of battle, which 



340 TORTURE. 

they justly regarded as the most significant emblem of 
feudal independence. 

The movement of the nobles resulted in obtaining from 
the king for the several provinces a series of charters, by 
which he defined, as vaguely, indeed, as he could, the 
extent of royal jurisdiction claimed, and in which he pro- 
mised to relieve them from certain grievances. In some 
of these charters, as in those granted to Britanny, to Bur- 
gundy, and to Amiens and Yermandois, there is no allusion 
made to torture. 1 In the two latter, the right to the wager 
of battle is conceded, which may explain why the nobles 
of those provinces were careless to protect themselves from 
a process which they could so easily avoid by an appeal to 
the sword. In the charter of Languedoc, all that Louis 
would consent to grant was a special exemption to those 
who had enjoyed the dignity of capitoul, consul, or decurion 
of Toulouse and to their children, and even this trifling 
concession did not hold good in cases of " lese-majeste" or 
other matters particularly provided for by law. a Normandy 
only obtained a vague promise that no freeman should be 
subjected to torture unless he were the object of violent 
presumptions in a capital offence, and that the torture 
should be so regulated as not to imperil life "or limb; and 
though the Normans were dissatisfied with this charter, 
and succeeded in getting a second one some months later, 
they gained nothing on this point. 3 

1 Isambert, Anciennes Lois Francaises, III. 131, 60, 65. 

3 Ordonnance, l ier Avril 1315, art. xix. (Ibid. III. 58), "Nisi pro dicto 
crimine lese majestatis, vel alio casu specialiter a jure permisso, de quo 
habeatur vehemens suspicio contra eum." The whole clause is borrowed 
from the Roman law, which may have reconciled Louis's legal advisers to it. 
It is noteworthy as containing the first introduction of the crime of lese- 
majeste into French jurisprudence, thus marking the triumph of civil over 
feudal law. 

3 Cart. Norman I. Mar. 1315, cap. xi. Cart. n. Jul. 1315, cap. xv. (Ibid. 
51, 109). Quod in dicto ducatu nullus homo liber qusestionetur, nisi ve- 
hemens prsesumptio ipsum reddat suspectum de crimine capitali, et tunc 



RESISTANCE OP FEUDALISM. 341 

The official documents concerning Champagne have been 
preserved to us more in detail. The nobles of that province 
complained that the royal prevots and Serjeants entered 
upon their lands to arrest their men and private persons, 
whom they then tortured in defiance of their customs and 
privileges ("contre leurs coustumes et libertez"). To this 
Louis promised to put an end. The nobles further alleged 
that, in contravention of the ancient usages and customs 
of Champagne ("contre les us et coustumes enciens de 
Champaigne"), the royal officers presumed to torture no- 
bles on suspicion of crime, even though not caught in the 
act, and without confession. To this, Louis vaguely re- 
plied, that for the future no nobles should be tortured, 
except under such presumptions as might render it proper, 
in law and reason, to prevent crime from remaining un- 
punished ; and that no one should be convicted unless 
confession were persevered in for a sufficient time after tor- 
ture. 1 This, of course, was anything but satisfactory, and 
the Champenois were not disposed to accept it, but all that 
they could* obtain after another remonstrance was a simple 
repetition of the promise that no nobles should be tortured 
except under capital accusations. 3 The struggle apparently 
continued, for, in 1319, we find Philippe-le-Long, in a charter 
granted to Perigord and Quercy, promising that the pro- 
ceedings preliminary to torture should be had in the pre- 
sence of both parties, doubtless to silence complaints as to 
the secret character which criminal investigations were 



taliter quod propter gravitatem tormentorum mors aut mutilatio non se- 
quatur. 

1 Ordonn. Mai 1315, art. v. xiv. (Bourdot de Richebourg, III. 233-4). 

2 Ordonn. Mars 1315, art ix. (Ibid. p. 235.) This ordonnance is incor- 
rectly dated. It was issued towards the end of May, subsequently to the 
above. 

a Ordonn. Jul. 1319 art. xxii. (Isambert III. 227). Volumus et concedimus 
generose dictis nobilibus dicte senescallie, quod seneschallus et alii officiales 

29* 



342 TORTURE. 

The use of torture was thus permanently established in 
the judicial machinery of France, as one of the incidents in 
the great revolution which destroyed the feudal power. 
Even yet, however, it was not universal, especially where 
communes had the ability to preserve their franchises. Count 
Beugnot has published, as an appendix to the " Olim," a col- 
lection known as the " Tout Lieu de St. Dizier," consisting of 
314 decisions of doubtful cases referred by the magistrates 
of St. Dizier to the city of Ypres for solution, as they were 
bound to do by their charter. The cases date mostly from 
the middle third of the fourteenth century, and were selected 
as a series of established precedents. The fact that, through- 
out the whole series, torture is not alluded to in a single 
instance shows that it was a form of procedure unknown 
to the court of the eschevins of St. Dizier and even to the 
superior jurisdiction of the bailli of their suzerain, the Seig- 
nieur of Dampierre. Many of these cases seem peculiarly 
adapted to the new inquisitorial system. Thus, in 1335, 
a man was attacked and wounded in the street at night. 
A crowd collected at his cries, and he named the assailant. 
No rule was more firmly established than the necessity of 
two impartial witnesses to justify condemnation, and the 
authorities of St. Dizier, not knowing what course to take, 
applied as usual for instructions to the magistrates of 
Ypres. The latter defined the law to be that the court 
should visit the wounded man on his sick-bed and adjure 
him by his salvation to tell the truth. If on this he named 
any one and subsequently died, the accused should be pro- 
nounced guilty ; if, on the other hand, he recovered, then 
the accused should be treated according to his reputation ; 
that is, if of good fame, he should be acquitted ; if of evil 
repute, he should be banished. 1 No case more inviting to 

nostri aliquos quaestionibus non supponant, absque prcmuntiatione seu sen- 
tentia in praesentia partiura per eos proferenda. 

1 Tout Lieu de Saint Disier cap. cclxxii. (Olim T. II. Append, p. 85fi). 
The charter of St. Dizier directs that all cases not therein specially provided 



RESISTANCE OF THE COMMUNES. 343 

the theory of torture could well be imagined, and yet neither 
the honest burghers of St. Dizier nor the powerful magnates 
of Ypres seem to have entertained the idea of its applica- 
tion. So, again, when the former inquire what proof is 
sufficient when a man accuses another of stealing, the 
answer is that no evidence will convict, unless the goods 
alleged to be stolen are found in the possession of the 
accused. 1 The wealthy city of Lille equally rejected the 
process of torture. The laws there in force, about the year 
1350, prescribe that in homicide cases conviction ought to 
be based upon absolute evidence, but where this is unat- 
tainable, then the judges are allowed to decide on mere 
opinion and belief, for uncertain matters cannot be rendered 
certain. 3 In such a scheme of legislation, the extortion of 
a confession as a condition precedent to condemnation can 
evidently find no place. 

Attempts to introduce torture in Aquitaine were appa- 
rently made, but they seem to have been resisted. In the 
Coutumier of Bordeaux during the fourteenth century there 
is a significant declaration that the sages of old did not 
wish to deprive men of their liberties and privileges. Tor- 
ture, therefore, was prohibited in- the case of all citizens 
except those of evil repute and declared to be infamous. 
The nearest approach to it that was permitted was tying 
the hands behind the back, without using pulleys to lift 
the accused from the ground. 3 

for shall be decided according to the customs of Ypres. For two hundred 
and fifty years, therefore, whenever the eschevins of the little town of Cham- 
pagne felt at a loss, they referred the matter to their lordly neighbors of 
Flanders, as to a court of last appeal. 

1 Ibid. cap. cclxxiii. 

2 Eoisin, Franchises, Lois et Coutumes de Lille, p. 119. Thus "on puet 
et doit demander de veir et de oir," but when this is impossible, "on doit 
et puet bien demander et enquerre de croire et cuidier. Et sour croire et 
sour cuidier avoee un veritet aparent de veir et d'oir, et avoec l'omechide 
aparant, on puet bien jugier, lone l'usage anchyen, car d'oscure fait oscure 
veritet." 

3 Rabanis, Revue Hist, de Droit, 1801, p. 515. — No volgoren los savis 
antiquament qu'om pergossa sa franquesba ni sa libertat. 



344 TORTURE. 

By this time,- however, places where torture was not used 
were exceptional. By a document of 1359, it appears that 
it was the custom to torture all malefactors brought to the 
Chatelet of Paris, 1 and though privileged persons constantly 
endeavored to exempt themselves from it, as the consuls of 
Yilleneuve in 137 1, 2 other privileged persons as constantly 
sought to obtain the power of inflicting it, as shown in the 
charter of Milhaud, granted in 1369, wherein the consuls 
of that town are honored with the special grace that no tor- 
ture shall be administered except in their presence, if they 
desire to attend. 3 At the end of the century, indeed, the 
right to administer torture in cases wherein the accused 
denied the charge was regularly established as incident to 
the possession of haute justice. 4 

Even in Germany, the citadel of feudalism, the progress 
of the new ideas and the influence of the Roman law had 
spread to such an extent that in the Golden Bull of Charles 
IY., in 1356, there is a provision allowing the torture of 
slaves to incriminate their masters in cases of sedition 
against any prince of the empire ; 5 and the form of expres- 
sion employed shows that this was an innovation. 

In Corsica, at the same period, we find the use of torture 
fully established, though subject to careful restrictions. 
In ordinary cases, it could only be employed by authority 
of the governor, to whom the judge desiring to use it 
transmitted all the facts of the case ; the governor then 
issued an order, at his pleasure, prescribing the mode and 

1 Du Cange s. v. Qucestionarius. 

2 Letters granting exemption from torture to the consuls of Villeneuve for 
any crimes committed by them were issued in 1371 (Isambert V. 352). 
These favors generally excepted the case of high treason. 

3 Du Cange s. v. Qiuzslio No. 3. 

4 Pour denier mettre a question et tourment. — Jean Desmarres, Decisions, 
Art. 295 (Du Boys, Droit Criminel II. 48). 

6 In hac causa in caput domini servos torqueri statuimus, id est, propter 
causam factionis. — Bull. Aur. cap. xxiv. § 9 (Goldast. I. 365). 



CORSICA — VENICE — HUNGARY. 345 

degree to which it might be applied. 1 In cases of treason, 
however, these limitations were not observed, and the 
accused was liable to its infliction as far and as often as 
might be found requisite to effect a purpose. 3 

The peculiar character of Venetian civilization made 
torture almost a necessity. The atmosphere of suspicion 
and secrecy which surrounded every movement of that 
republican despotism, the mystery in which it delighted to 
shroud itself, and the pitiless nature of its legislation con- 
spired to render torture an indispensable resource. How 
freely it was administered, especially in political affairs', is 
well illustrated in the statutes of the State inquisition, 
where the merest suspicion is sufficient to authorize its 
application. Thus, if a senatorial secretary were observed 
to be more lavish in his expenditures than his salary 
would appear to justify, he was at once suspected of being 
in the pay of some foreign minister, and spies were ordered 
on his track. If he were then simply found to be absent 
from his house at undue hours, he was immediately to be 
seized and put to the torture. So, if any one of the in- 
numerable secret spies employed by the inquisitors were 
insulted by being called a spy, the offender was arrested 
and tortured to ascertain how he had guessed the character 
of the emissary. 3 Human life and human suffering were of 
little account in the eyes of the cold and subtle spirits who 
moulded the policy of the mistress of the Adriatic. 

Other races adopted the new system less readily. In 
Hungary, for instance, the first formal embodiment of tor- 
ture in the law occurs in 1514, and though the terms em- 
ployed show that it had been previously used to some 
extent, yet the restrictions laid down manifest an extreme 
jealousy of its abuse. Mere suspicion was not sufficient. 
To justify its application a degree of proof was requisite 
which was almost competent for condemnation, and the 

1 Statut. Criminali cap. xiv. (Gregorj, Statuti di Corsica p. 101). 

2 Ibid. cap. lx. (p. 163). 

3 Statuts de 1'Inquisition d'Etat, 1° Supp. §§ 20, 21 (Daru). 



346 TORTURE. 

nature of this, evidence is well exemplified in the direction 
that, if a judge himself witnessed a murder, he could not 
order the homicide to be tortured unless there was other 
sufficient testimony, for he could not be both witness and 
judge, and his knowledge of the crime belonged to his private 
and not to his judicial capacity. 1 With such refinements, 
there was little danger of the extension of the custom. 

In Poland, torture does not make its appearance until 
the fifteenth century, and then it was introduced gradually, 
with strict instructions to the tribunals to use the most 
careful discretion in its administration. 3 In Russia, the first 
formal allusion to it is to be found in the Oulagenie Zakon- 
off, a code promulgated in 149T, by Ivan III., which merely 
orders that persons accused of robbery, if of evil repute, 
may be tortured to supply deficiencies of evidence ; but as 
the duel was still freely allowed to the accused, the use of 
torture must have been merely incidental. 3 From another 
source, dating about 1530, we learn that it was customary to 
extort confessions from witches by pouring upon them from 
a height a small stream of cold water; and in cases of 
contumacious and stubborn criminals, the finger nails were 
wrenched off with little wooden wedges. 4 Still, torture 

1 Synod. Reg. ann. 1514, Prooem. (Batthyani Legg. Eccles. Hung. I. 574) 
— "Nam si judex ex fenestra praetorii vel domus suae, intueatur unum quem- 
piam interficiendum, et quoniam hoe homicidium, vel non defertur in judi- 
cium, vel delatum non probatur, et judex voluerit homicidam de seipso sub- 
jicere torturae, ut Veritas per illius eonfessionem eliciatur, certe non poterit. 
Sola enim judicis scientia ad hoe non suffieit ut ad torturam reus deveniat, 
quum ipse illud nesciat ut judex, sed ut privata persona, nee ipsius testi- 
monium in hac parte valet, quum in unum et eadem causa nemo potest esse 
et testis et judex : igitur aliunde est edocendus, vel per testes vel alia docu- 
menta, ut possit torquere criminosum." According to some authorities, this 
was a general rule — " Judex quamvis viderit committi delictum non tamen 
potest sine aliis probationibus reum torquere, ut per Specul. etc." — Jo. 
Emerici a Rosbach Process. Criminal. Tit. v. cap. v. No. 13 (Francof. 1645). 

2 Du Boys, Droit Criminel, I. 650. 

3 Esneaux, Hist, de Russie, III. 236. 

4 Pauli Jovii Moschovia. — This is a brief account of Russia, compiled about 
the year 1530, by Paulus Jovius from his conversations with Dmitri, am- 






THE INQUISITORIAL PROCESS. 34 7 

makes but little show in the subsequent codes, such as the 
Soudebtnick, issued in 1550, and the Sobornoie Oulagenie, 
promulgated in 1648.' 

In fact, these regions were still too barbarous for so 
civilized a process. Returning to Central and Western 
Europe, which during this period had advanced with such 
rapid strides of enlightenment, we find the inquisitorial 
process of torture attaining a portentous importance as 
the groundwork of all criminal procedure, and its adminis- 
tration prescribed with the most careful and minute preci- 
sion. 

bassador to Clement VII. from Vasili V., first Emperor of Russia. Olaus 
Magnus, in the pride of his Northern blood, looks upon this as a slander on 
the hardihood of the rugged Russ — " hoc scilicet pro terribili tormento in ea 
durissima gente reputari, quae flammis et eculeis adhibitis, vix, ut acta 
revelet, tantillulum commovetur," and he broadly hints that the wily ambas- 
sador amused himself by hoaxing the soft Italian : " Sed revera vel ludibriose 
bonus preesul a versuto Muscovitici principis nuntio Demetrio dicto, tempore 
Clementis VII. informatus est Romae." (Gent. Septent. Hist. Brev. Lib- xi. 
c. xxvi.) The worthy archbishop doubtless spoke of his own knowledge 
with respect to the use of the rack and fire in Russia, but the contempt he 
displays for the torture of a stream of water is ill-founded. In our prisons, 
the punishment of the shower-bath is found to bring the most refractory 
characters to obedience in an incredibly short time, and its unjustifiable 
severity in a civilized age like this may be estimated from the fact that it 
has occasionally resulted in the death of the patient. Thus, at the N. Y. 
State Prison at Auburn, in December, 1858, a stout, healthy man named 
Samuel Moore, was kept in the shower-bath from a half to three-quarters of 
an hour, and died almost immediately after being taken out. A less inhumane 
mode of administering the punishment is to wrap the patient in a blanket, 
lay him on his back, and, from a height of about six feet, pour upon his fore- 
head a stream from an ordinary watering-pot without the rose. According 
to experts, this will make the stoutest criminal beg for his life in a few 
seconds. 

During the later period of our recent war, when the prevalence of exagge- 
rated bounties for recruits led to an organized system of desertion, the magni- 
tude of the evil seemed to justify the adoption of almost any means to arrest 
a practice which threatened to rapidly exhaust the resources of the country. 
Accordingly, the shower-bath was occasionally put into requisition by the 
military authorities to extort confession from suspected deserters, when legal 
evidence was not attainable, and it was found exceedingly efficacious. 

1 Du Boys, op. cit. I. G18. 



348 TORTURE. 

Allusion has already been made to the influence of the 
inquisition in introducing the use of torture. Its influence 
did not cease there, for with torture there gradually 
arose the denial to the accused of all fair opportunity of 
defending himself, and the system of secret procedure which 
formed so important a portion of the inquisitorial practice. 
In the old feudal courts, the prosecutor and the defendant 
appeared in person. Each produced his witnesses ; the 
case was argued on both sides, and unless the wager of 
battle intervened, a verdict was given in accordance with 
the law after duly weighing the evidence, while both par- 
ties were at liberty to employ counsel and to appeal to the 
suzerain. When St. Louis endeavored to abolish the duel 
and to substitute a system of inquests, which were neces- 
sarily to some extent ex parte, he did not desire to with- 
draw from the accused the legitimate means of defence, and 
in the Ordonnance of 1254 he expressly instructs his officers 
not to imprison the defendant without absolute necessity, 
while all the proceedings of the inquest are to be communi- 
cated freely to him. 1 All this changed with time and the 
authoritative adoption of torture. The theory of the inquisi- 
tion, that the suspected man was to be hunted down and 
entrapped like a wild beast, that his guilt was to be assumed, 
and that the efforts of his judges were to be directed solely 
to obtaining against him sufficient evidence to warrant the 
extortion of a confession without allowing him the means 
of defence — this theory became the admitted base of criminal 
jurisprudence. The secrecy of these inquisitorial proceed- 
ings, moreover, deprived the accused of one of the great 
safeguards accorded to him under the Roman law of tor- 
ture. That law, as we have seen, required the formality of 
inscription, by which the accuser who failed to prove his 

1 Statut. S. Ludov. arm. 1254 §§ 20, 21. (Isambert I. 270)— Et quia in 
dictis senescalliis secundum jura et terre consuetudinem fit inquisitio in 
criminibus, volunius et mandamus quod reo petenti acta inquisitionis tra- 
dantur ex integro. 



SECRECY OP PROCEEDINGS. 349 

charge was liable to the lex talionis, and in crimes which 
involved torture in the investigation, he was duly tortured. 
This was imitated by the Wisigoths, and its principle was 
admitted and enforced by the Church before the introduc- 
tion of the Inquisition had changed its policy ; 1 but modern 
Europe, in borrowing from Rome the use of torture, com- 
bined it with the inquisitorial process, and thus in civilized 
Christendom it speedily came to be used more recklessly 
and cruelly than ever it had been in pagan antiquity. 

In 1498, an assembly of notables at Blois drew up an 
elaborate ordonnance for the reformation of justice in 
France. In this, the secrecy of the inquisitorial process is 
dwelt upon with peculiar insistance as of the first import- 
ance in all criminal cases. The whole investigation was 
in the hands of the government official, who examined 
every witness by himself, and secretly, the prisoner having 
no knowledge of what was done, and no opportunity of 
arranging a defence. After all the testimony procurable 
in this one-sided manner had been obtained, it was dis- 
cussed by the judges, in council with other persons named 
for the purpose, who decided whether the accused should 
be tortured. He could be tortured but once, unless fresh 
evidence meanwhile was collected against him, and his 
confession was read over to him the next day, in order 
that he might affirm or deny it. A secret deliberation was 
then held by the same council, who decided as to his fate.' 2 

1 Thus Gratian, in the middle of the twelfth century — " Qui calumniam 
illatam non probat poenam debet incurrere quam si probasset reus utique 
sustineret." — Decreti P. n. caus. v. qusest. 6, c. 2. 

2 Ordonnance, Mars 1498, §§ 110-116 (Isambert, XL 365.— Fontanon, I. 
701). It would seem that the only torture contemplated by this ordonnance 
was that of water, as the clerk is directed to record " la quantite de l'eau 
qu'on aura baillee audit prisonnier." This was administered by gagging 
the patient, and pouring water down his throat until he was enormously 
distended. It was sometimes diversified by making him eject the water 
violently, by forcible blows on the stomach. V. Du Cange s. v. Gaggare. 

30 



350 TORTURE. 

This cruel system was still further perfected by Francis 
I., who, in an ordonnance of 1539, expressly abolished the 
inconvenient privilege assured to the accused by St. Louis, 
which was apparently still occasionally claimed, and di- 
rected that in no case should he be informed of the accu- 
sation against him, or of the facts on which it was based, 
nor be heard in his defence. Upon examination of the ex 
parte testimony, without listening to the prisoner, the 
judges ordered torture proportioned to the gravity of the 
accusation, and it was applied at once, unless the prisoner 
appealed, in which case his appeal was forthwith to be 
decided by the superior court of the locality. 1 The whole 
process was apparently based upon the conviction that it 
was better that a hundred innocent persons should suffer 
than that one culprit should escape, and it would not be 
easy to devise a course of procedure better fitted to render 
the use of torture universal. 

But even this was not all. Torture, as thus employed 
to convict the accused, became known as the question pre- 
paratoire, and, in defiance of the old rule that it could be 
applied but once, a second application, known as the ques- 
tion definitive or prealable, became customary, by which, 
after condemnation, the prisoner was again subjected to 
the extremity of torment in order to discover whether he 
had any accomplices, and, if so, to identify them. In this 

Sometimes a piece of cloth was used to conduct the water down his throat. 
To this, allusion is made in the " Appel de Villon :" — 
" Se fusse des hoirs Hue Capel 
Qui fut extraict de boucherie, 
On ne m'eust, parmy ce drapel, 
Faict boyre a celle escorcherie." 
(Evres de Villon, p. 310, Ed. Prompsault, Paris, 1834. 

1 Ordonn. de Villers-Cotterets, Aout 1539, §§ 162-164 (Isambert, XIII. 
633-4). "Ostant et abolissant tous styles, usances ou coutumes par les- 
quels les accuses avoient accoutumes d'etre ouis en jugement pour scavoir 
s'ils devoient etre accuses, et a cette fin avoir communication des faits et 
articles concernant les crimes et delits dont ils etoient accuses." 



CLASSIFICATION. 351 

detestable practice we find another instance of the unfor- 
tunate influence of the Inquisition in modifjdng the Roman 
law. The latter expressly and wisely provided that no 
one who had confessed should be examined as to the guilt 
of another ; f the former regarded the conviction of the ac- 
cused as a worthless triumph unless he could be forced to 
incriminate his possible associates, and the lawyers fol- 
lowed eagerly in its footsteps. 

Torture was also generically divided into the question or- 
dinaire and extraordinaire — a rough classification to pro- 
portion the severity of the infliction to the gravity of the 
crime or the urgency of the case. Thus, in the most usual 
kind of torment, the strappado, popularly known as the 
Moine de Caen, the ordinary form was to tie the prisoner's 
hands behind his back with a piece of iron between them ; 
a cord was then fastened to his wrists by which, with the 
aid of a pulley, he was hoisted from the ground with a 
weight of one hundred and twenty-five pounds attached to 
his feet. In the extraordinary torture, the weight was 
increased to two hundred and fifty pounds, and when the 
victim was raised to a sufficient height, he was dropped 
with a jerk that dislocated his joints, the operation being 
thrice repeated. 2 

Thus, in 1549, we see the system in full operation in the 
case of Jacques de Coney, who, in 1544, had surrendered 
Boulogne to the English. This was deemed an act of 
treachery, but he was pardoned in 1547 ; yet, notwithstand- 
ing his pardon, he was subsequently tried, convicted, con- 
demned to decapitation and quartering, and also to the 
question extraordinaire to obtain a denunciation of his 
accomplices. 3 

1 Nemo igitur de proprio crimine confitentem super eonscientia scrutetur 
alieoa — Const. 17 Cod. ix. ii. (Honor. 423). 

2 Cheruel, Diet. Hist, des Institutions etc. de la France, p. 1220 (Paris, 
1855). 

3 Isambert, XIV. 88. Beccaria comments on the absurdity of this pro- 
ceeding, as though a man who had accused himself would make any dim- 



352 TORTURE. 

When Louis XIV., under the inspiration of Colbert, 
remoulded the jurisprudence of France, various reforms 
were introduced into the criminal law, and changes both 
for better and worse were made in the administration 
of torture. The Ordonnance of lG^O was drawn up by a 
committee of the ablest and most enlightened jurists of the 
day, and it is a melancholy exhibition of human wisdom 
when regarded as the production of such men as Lamoig- 
non, Talon, and Pus sort. All preliminary testimony was 
still ex parte. The prisoner was heard, but he was still 
examined in secret. Lamoignon vainly endeavored to ob- 
tain for him the advantage of counsel, but Colbert obsti- 
nately refused this concession, and the utmost privilege 
allowed the defence was the permission accorded to the 
judge, at his discretion, to confront the accused with the 
adverse witnesses. In the question preliminaire, torture 
was reserved for capital cases, when the proof was strong 
and yet not enough for conviction. During its application 
it could be stopped and resumed at the pleasure of the 
judge, but if the accused were once unbound and removed 
from the rack, it could not be repeated, even though addi- 
tional evidence were subsequently obtained. 1 A new fea- 
ture of the law, however, which was equally brutal and 

culty in accusing others. — "Quasi che l'uomo che accusa se stesso, non 
acusi pia facilinente gli altri. E egli giusto il tormentare gli uomini per 
l'altrui delitto?" — Dei Delitte e delle Pene, § xn. 

1 These restrictions were very well in principle, but in practice they offered 
little real protection to the accused. Judges intent on procuring a convic- 
tion found no difficulty in eluding them. A contemporary, whose judicial 
position gave him every opportunity of knowing the truth, remarks : " lis 
ont trouve une difference du mot, et veulent que puisqu'il n'est pas permis 
de retterer la torture, il soit permis de la continuer, quoiqu'il y ait eu trois 
jours entiers de surseance, que si le patient par bonheur ou par miracle n'est 
pas mort dans ces redoublements de douleurs, ils ont trouve la fameuse inven- 
tion de nouveavx indices survemis, pour l'y exposer tout de nouveau sans 
y faire fin. Par ce moyen ils ont rendu illusoire. l'intention de la Loy, qui 
veut qu'on fasse fin de ces cruautez par un renvoy du patient qui a souffert 
sans confesser ou sans confirmer sa confession hors de ces tourments." — 
Nicolas, Dissert, morale et juridique sur la Torture, p. Ill (Amsterd. 1682). 



CAROLINE CONSTITUTIONS. 353 

illogical, was that which authorized the employment of 
torture "avec reserve des preuves." When this was 
decided on, the silence of the accused under torment did 
not acquit him, though the whole theory of the question 
lay in the necessity of confession. He simply escaped the 
death penalty, and could be condemned to any other punish- 
ment which the discretion of the judges might impose, thus 
presenting the anomaly of a man neither guilty nor inno- 
cent, relieved from the punishment assigned by the law to 
the crime of which he had been accused, and condemned to 
some other penalty without having been convicted of any 
offence. 1 The cruel mockery of the question prealable was 
retained, 3 and in this composite form, torture remained for 
more than a century an integral part of the jurisprudence 
of France. 

In Germany, torture had been reduced to a system, in 
1532, by the Emperor Charles V., whose " Caroline Consti- 
tutions" contain a more complete code on the subject than 
had previously existed, except in the records of the Inqui- 
sition. Inconsistent and illogical, it quotes Ulpian to 
prove the deceptive nature of the evidence thence derivable ; 
it pronounces torture to be " res dira, corporibus hominum 
admodum noxia et quandoque lethalis, cui et mors ipsa 
prope proponenda;" 3 in some of its provisions it manifests 
extreme care and tenderness to guard against abuses, and 
yet practically it is merciless to the last degree. Confes- 
sion made during torture was not to be believed, nor could 

1 The practical working of this system is exemplified by a sentence of the 
Court of Orleans in 1740, by which a man named Barberousse, from whom 
no confession had been extorted, was condemned to the galleys for life, 
because, as the sentence read, he was strongly suspected of premeditated 
murder. — L'Oiseleur, Les Crimes et les Peines, pp. 206-7. 

3 Ordonnance Criminel d'Aout 1G70, Tit. xiv. xix. (Isambert, XIX. 398, 
412). 

3 Legg. Capital. Caroli V. c. lx., lviii. 

30* 



354 TORTURE. 

a conviction be based upon it ;* yet what the accused might 
confess after being removed from torture was to be received 
as the deposition of a dying man, and was full evidence. 8 
In practice, however, this only held good When adverse to 
the accused, for he was brought before his judge after 
an interval of a day or two, when, if he confirmed the con- 
fession, he was condemned, if he retracted it, he was at 
once thrust again upon the rack. In confession under tor- 
ture, moreover, he was to be closely cross-questioned, and 
if any inconsistency was observable in his self-condemna- 
tion the torture was at once to be redoubled in severity. 3 
The legislator thus makes the victim expiate the sins of 
his own vicious system ; the victim's sufferings increase 
with the deficiency of the evidence against him, and the 
legislator consoles himself with the remark that the victim 
has only himself to thank for it, " de se tantum non de alio 
quseratur." To complete the inconsistency of the code, it 
provided that confession was not requisite for conviction ; 
irrefragable external evidence was sufficient ; and yet even 
when such evidence was had, the judge was empowered to 
torture in mere surplusage. 4 Yet there was a great show 
of tender consideration for the accused. When the weight 
of conflicting evidence inclined to the side of the prisoner, 
torture was not to be applied. 5 Two adverse witnesses, or 
one unexceptionable one, were a condition precedent, and 
the legislator shows that he was in advance of his age by 
ruling out all evidence resting on the assertions of magi- 
cians and sorcerers. 6 To guard against abuse, the impos- 

1 Ibid. e. xx. Et, ut maxime fiat, reum per eculei cruciatus crimen fateri, 
ejusmodi tamen confessioni minime gentium credendum et multo minus 
sententia ferenda est. 

2 Ibid. c. lviii. Neque iis, quse mediis profundent rei cruciatibus, credet ; 
sed iis demum, quae recens quaestionibus exempti indieabunt et eonfitebuntur, 
perscribenturque tanquam ea quae morientum ad veritatis investigationem 
sint allatura. 

3 Ibid. c. lv., Ivi., lvii. 4 Ibid. c. xxii , Ixix. 
5 Ibid. c. xxviii. e Ibid. c. xxiii., xxi. 



MODERN GERMANY. 355 

sible effort was made to define strictly the exact quality 
and amount of evidence requisite to justify torture, and 
the most elaborate and minute directions were given with 
respect to all the various classes of crime, such as homicide, 
child-murder, robbery, theft, receiving stolen goods, poison- 
ing, arson, treason, sorcery, and the like j 1 while the judge 
administering torture to an innocent man on insufficient 
grounds was liable to make good all damage or suffering 
thereby inflicted. 2 The amount of torment, moreover, was 
to be proportioned to the age, sex, and strength of the 
patient ; women during pregnancy were never to be sub- 
jected to it ; and in no case was it to be carried to such a 
point as to cause permanent injury or death. 3 

Charles V. was too astute a ruler not to recognize the 
aid derivable from the doctrines of the Roman law in his 
scheme of restoring the preponderance of the Kaisership, 
and he lost no opportunity of engrafting them on the juris- 
prudence of Germany. In his Criminal Constitutions, how- 
ever, he took care to embody largely the legislation of his 
predecessors and contemporaries, and though protests were 
uttered by many of the Teutonic princes, the code gradually 
became to a great extent part and parcel of the common 
law of Germany. 4 A fair idea of the shape assumed, under 
these influences, by the criminal law in its relations with 
torture, can be obtained by examining some of the legal 
text-books which were current as manuals of practice from 
the sixteenth to the eighteenth century. 5 As the several 

1 Legg. Capital. Carol. V. c. xxxiii.-xliv. 

3 Ibid. c. xx., lxi. 

a Ibid. c. lviii., lix. Accusatus, si periculum sit, ne inter vel post tor- 
menta ob vulnera expiret, ea arte torquendus est, ne quid damni aceipiat. 

4 Heineccii Hist. Jur. Civ. Lib. II. §§ cv. sqq. 
s My principal authorities are three : — 

I. " Tractatus de Qusestionibus seu Torturis Reorura," published in 1592 
by Johann Zanger of Witternberg, a celebrated jurisconsult of the time, and 
frequently reprinted. My edition is that of 1730, with notes by the learned 
Baron Senckenberg. 

II. " Practica Criminalis, seu Processus Judiciarius ad usum et consue- 



356 TORTURE. 

authors of these works all appear to condemn the principle 
or to lament the necessity of torture, their instructions as 
to its employment may safely be assumed to represent the 
most humane and enlightened views current during the 
period. 1 It is easy to see from them, however, that though 
the provisions of the Caroline Constitutions were still 
mostly in force, yet the practice had greatly extended 
itself, and that the limitations prescribed for the protection 
of innocence and helplessness had become of little real 
effect. 

Upon the theory of the Roman law, nobles and the 
learned professions had claimed immunity from torture, 
and the Roman law inspired too sincere a respect to permit 
a denial of the claim, 3 yet the ingenuity of lawyers reduced 
the privilege to such narrow proportions that it was prac- 
tically almost valueless. For certain crimes, of course, 
such as majestas, adultery, and incest, the authority of the 
Roman law admitted of no exceptions, and to these were 
speedily added a number of other offences, classed as 
crimina excepta or nefanda, which were made to embrace 
almost all offences of a capital nature, in which alone tor- 
ture was at any time allowable. Thus, parricide, uxoricide, 

tudinem judiciorum in Germania hoc tempore frequentiorem," by Johann 
Emerich von Rosbach, published in 1645 at Frankfort on the Mayn. 

III. "Tractatio Juridica, de Usu et Abusu Torturse," by Heinrich von 
Boden, a dissertation read at Halle in 1697 and reprinted by Senckenberg 
in 1730, in conjunction with the treatise of Zanger. 

1 Cum nihil tarn severum, tamcrudele et inhumanum videatur quam hom- 
inem conditum ad imaginem Dei .... tormentis lacerare et quasi excarnifi- 
care etc. — Zangeri Tract, de Qusestion. cap. i. No. 1. 

Tormentis humanitatis et religionis, necnon jurisconsultorum argumenta 
repugnant. — Jo. Emerici a Rosbach Process. Crimin. Tit. v. c. ix. No. 1. 

Saltern horrendus torturse abusus ostendit, quo miseri, de facinore aliquo 
suspecti, fere infernalibus, et si fieri possit, plusquam diabolicis cruciatibus 
exponuntur, ut qui nullo legitimo probandi modo convinci poterant, atroci- 
tate cruciatuum contra propriam salutem confiteri, seque ita destruere sive 
jure sive injuria, cogantur. — Henr. de Boden Tract. Prsefat. 

2 Zangeri cap. I. No 49-58. 



MODERN GERMANY. 35T 

fratricide, witchcraft, sorcery, counterfeiting, theft, sacrilege, 
rape, arson, repeated homicide, etc., came to be included in 
the exceptional cases, and the only privileges extended in 
them to nobles were that they should not be subjected to 
"plebeian" tortures. 1 In Catholic countries, of course, the 
clergy were specially favored. The torture inflicted on 
them was lighter than in the case of laymen, and proof of 
a much more decided character was required to justify 
their being exposed to torment. 2 

Slight as were the safeguards with which legislators 
endeavored to surround the employment of torture, they 
became almost nugatory in practice under a system 
which, in the endeavor to reduce doubts into certainties, 
ended by leaving everything to the discretion of the judge. 
It is instructive to see the parade of insisting upon the 

1 Zangeri cap. i. No. 59-88. — Knipsehild, in his voluminous "Tract, de 
Nobilitate" (Campodun. 1693), while endeavoring to exalt to the utmost the 
privileges of the nobility, both of the sword and robe, is obliged to admit 
their liability to torture for these crimes, and only urges that the preliminary 
proof should be stronger than in the case of plebeians (Lib. n. cap. iv. No. 
108-120) ; though, in other accusations, a judge subjecting a noble to torture 
should be put to death, and his attempt to commit such an outrage could be 
resisted by force of arms (Ibid. No. 103). He adds, however, that no special 
privileges existed in France, Lombardy, Venice, Italy, and Saxony (Ibid. 
No. 105-7). 

As early as 1514, I find an instance which shows how little protection was 
afforded by these privileges. A certain Dr Bobenzan, a citizen of good 
repute and syndic of Erfurt, who both by position and profession belonged 
to the excepted class, when brought up for sentence on a charge of con- 
spiring to betray the city, and warned that he could retract his confession, 
extracted under torture, pathetically replied — "During my examination, I 
was at one time stretched upon the rack for six hours, and at .another I 
was slowly burned for eight hours. If I retract, I shall be exposed to these 
torments again and again. I had rather die'' — and he was duly hanged. 
(Erphurdianus Variloquus, ann. 1514.) 

3 Emer. a Rosbach Process. Crimin. Tit. v. cap. xiv. As an illustration, 
von Rosbach states that if a layman is found in the house of a pretty woman, 
most authors consider the fact sufficient to justify torture on the charge of 
adultery — "hoc tamen fallit in sacerdote vel presbytero, qui si mulierem 
amplexetur, pra3sumitur facere causa benedicendi." 



358 . TORTURE. 

necessity of strong preliminary evidence, 1 and to read the 
elaborate details as to the exact kind and amount of testi- 
mony severally requisite in each description of crime, and 
then to find that common report was held sufficient to 
justify torture, or unexplained absence before accusation, 
prevarication under examination, and even silence; and it 
is significant of fearful cruelty when we see judges solemnly 
warned that an evil countenance, though it may argue de- 
pravity in general, does not warrant the presumption of 
actual guilt in individual cases ; 3 though pallor, under many 
circumstances, was considered to sanction the application 
of torture. 3 Subtle lawyers thus exhausted their ingenuity 
in discussing all possible varieties of indications, and there 
grew up a mass of confused rules wherein, on many points, 
each authority contradicted the other. In a system which 
thus waxed so complex, the discretion of the judge at last 
became the only practical guide, and the legal writers them- 
selves acknowledge the worthlessness of the rules so labo- 
riously constructed when they admit that it is left for his 
decision to determine whether the indications are sufficient 
to warrant the infliction of torture. 4 How absolute was 
this discretion, and how it was exercised, is manifest when 

1 Even this, however, was not deemed necessary in cases of conspiracy 
and treason "qui fiunt secreto, propter probationis difficultatem devenitur 
ad torturam sine indiciis." (Emer. a Rosb. Tit. v. cap. x. No. 20. j 

3 Fama frequens et vehemens facit indicium ad torturam. (Zanger. c. II. 
No. 80.) Reus ante accusationem vel inquisitionem fugiens et citatus con- 
tuinaciter absens, se suspectum reddit ut torqueri possit. (Ibid. No. 91.) 
Inconstantia sermonis facit indicium ad torturam. (Ibid. No. 96-99.) Ex 
taciturnitate oritur indicium ad torturam. (Ibid. No. 103.) Physiognomia 
malam naturam arguit, non autem delictum. (Ibid. No. 85.) 

3 Deinde a pallore et similibus oritur indicium ad torturam secundum 
Bartol. (Emer. a Rosbach Tit. v. c. vii. No. 28-31.) Whereupon von Ros- 
bach enters into a long dissertation as to the causes of paleness. 

4 Judicis arbitrio relinquitur an indicia sint sufficientia ad torturam. 
(Zanger. cap. n. No. 16-20.) An indicia sufficiant ad torturam judicis 
arbitrio relictum est. . . . Indicia ad torturam sufficientia reliquuntur officio 
judicis. (Emer. a Rosbach Tit. v. c. ii. p. 529.) 



MODERN GERMANY. 359 

von Rosbach tells us that the magistrates of his time, in 
the absence of all evidence, sometimes resorted to divina- 
tion or the lot in order to obtain proof on which they could 
employ the rack or strappado. 1 

Such a system tends of necessity to its own extension, 
and it is therefore not surprising to find that the aid of 
torture was increasingly invoked. The prisoner who re- 
fused to plead, whether there was any evidence against 
him or not, could be tortured until his obstinacy gave way. 3 
Even witnesses were not spared, whether in civil suits or 
criminal prosecutions. 3 It was discretionary with the judge 
to inflict moderate torture on them, when the truth could 
not otherwise be ascertained. Infamous witnesses could 
always be tortured ; those not infamous, only when they 
prevaricated, or when they were apparently committing 
perjury; but, as this was necessarily left with the judge 
to determine, the instructions for him to guide his decision 
by observing their appearance and manner show how com- 
pletely the whole case was in his power, and how readily 
he could extort evidence to justify the torture of the priso- 
ner, and then extract from the latter a confession by the 
same means. A reminiscence of Roman law, however, is 
visible in the rule that no witness could be tortured against 
his kindred to the seventh degree, nor his near connections 
by marriage, his feudal superiors, nor other similar per- 
sons. 4 

Some limitations were imposed as to age and strength. 
Children under fourteen could not be tortured, nor the 
aged whose vigor was unequal to the endurance, though 
they could be tied to the rack, and menaced to the last 
extremity. Insanity was likewise a safeguard, and much 

1 Emer. a Rosbach Tit. v. c. x. No. 25. Sed aliqui judices quando desunt 
indicia, procedunt per sortilegia et similia. 

2 Ibid. Tit. v. cap. x. No. 2. 

3 Ibid. Tit. v. cap. xiv. No. 16. 

4 Zangeri op. cit. cap. i. No. 8-25. 



360 TORTURE. 

discussion was had as to whether the deaf, dumb, and blind 
were liable or not. Zanger decides in the affirmative, 
whenever, whether as principles or witnesses, good evi- 
dence was to be expected from them. 1 The Roman rule 
was followed that, whenever several parties were on trial 
under the same accusation, the torturer should commence 
with the weakest and tenderest, while a refinement of 
cruelty prescribed that if a husband and wife were arraigned 
together, the wife should be tortured first, and in the pre- 
sence of her husband ; and if a father and son, the son 
before his father's face. 3 

Some facilities for defence were allowed to the accused, 
but in practice they were almost hopelessly slender. He 
was permitted to employ counsel, and if unable to do so, 
it was a duty of the judge to look up testimony for the 
defence. 3 After all the adverse evidence had been taken, 
and the prisoner had been interrogated, he could demand 
to see a copy of the proceedings, in order to frame a de- 
fence ; but the demand could be refused, in which case, the 
judge was bound to sift the evidence himself, and to inves- 
tigate the probable innocence or guilt of the accused. The 
recognized tendency of such a sj^stem to result in an un- 
favorable conclusion is shown by Z anger's elaborate in- 
structions on this point, and his warning that, however 
justifiable torture may seem, it ought not to be resorted to 
without at least looking at the evidence which may be 
attainable in favor of innocence ; 4 while von Rosbach cha- 
racterizes as the greatest fault of the tribunals of his day, 
their neglect to obtain and consider testimony for the 
prisoner as well as that against him. 5 In some special and 
extraordinary cases, the judge might allow the accused to 
be confronted with the accuser, but this was so contrary 
to the secrecy required by the inquisitorial system, that he 

1 Zangeriop. cit. cap. I. No. 34-48. 3 Ibid. cap. iv. No. 25-30. 

3 Ibid. cap. in. No 3. 4 Ibid. cap. in. No. 1, 4, 5-43. 

5 Process. Crim. Tit. v. cap. xi. No. 6. 



MODERN GERMANY. 361 

was cautioned that it was a very unusual course, and one 
not lightly to be allowed, as it was odious, unnecessary, 
and not pertinent to the trial. 1 Theoretically, there was a 
right of appeal against an order to inflict torture, but this, 
even when permitted, could usually avail the accused but 
little, for the ex parte testimony, which had satisfied the 
lower judge, could, of course, in most instances, be so 
presented to the higher court as to insure the affirmation of 
the order, and prisoners in their helplessness would doubt- 
less feel that by the attempt to appeal they would probably 
only increase the severity of their inevitable sufferings. 2 

Slender as were these safeguards in principle, they were 
reduced in practice almost to a nullity. That the discretion 
lodged in the tribunals was habitually and frightfully 
abused is only too evident, when von Rosbach deems it neces- 
sary to reprove, as a common error of the judges of his 
time, the idea that the use of torture was a matter alto- 
gether dependent upon their pleasure, " as though nature 
had created the bodies of prisoners for them to lacerate at 
will." 3 It was an acknowledged rule, that when guilt 
could be sufficiently proved by witnesses, torture was not 
admissible ;* yet a practice grew up whereby, after a man 
had been duly convicted of a capital crime, he was tortured 
to extract confessions of any other offences of which he 
might be guilty. 5 Martin Bernhardi, writing in 1105, as- 
serts that this was resorted to in order to prevent the 
convict from appealing from the sentence f and as late as 
1*764, Beccaria lifts his voice against it as a still existing 
abuse, which he well qualifies as senseless curiosity, ini- 

1 Zangeri cap. n. No. 49-50. — Cum enim confrontatio odiosa sit et 
species suggestionis, et remedium extraordinarium ad substantiam processus 
non pertinens, et propterea non necessaria. 

3 Ibid. cap. iv. No. 1-6. 

3 Process. Crimin. Tit. v. cap. ix. No. 10. 

4 Zangeri cap. i. No. 37. 

6 Boden de Usu et Abusu Torturse Th. xn. 
G Martini Bernhardi Diss. Inaug. de Tortura cap. i. § 4. 
31 



362 TORTURE. 

pertinent in the wantonness of its cruelty. 1 Another posi- 
tive rule was that torture could only be applied in accusa- 
tions involving life or limb f but Senckenberg assures us 
that he had known it to be resorted to in mercantile mat- 
ters, where money only was at stake. 3 Equally absolute 
was the maxim that torture could not be employed unless 
there was positive proof that crime of some sort had been 
committed, for its object was to ascertain the criminal and 
not the crime ; 4 yet von Rosbach remarks that as soon as 
any one claimed to have lost anything by theft, the judges 
of his day hastened to torture all suspect, without wait- 
ing to determine whether the theft had really occurred as 
alleged, 5 and von Boden declares that many tribunals were 
in the habit of resorting to it in cases wherein subsequent 
developments showed that no crime had really been com- 
mitted, and he quotes a brother lawyer, who jocosely cha- 
racterized such proceedings as putting the cart before the 
horse, and bridling him by the tail. 6 

1 He represents the judge as addressing his victim " Tu sei il reo di un 
delitto, dunque e possibile che lo sii di cent' altri delitti : questo dubbio mi 
pesa, voglio accertarmene col mio criterio di verita : le leggi ti tormentano, 
perche sei reo, perche puoi esser reo, perche voglio che tu sii reo." — Dei 
Delitti e delle Pene, § xn. 

3 Zangeri Praefat. No. 31. 

3 Zangeri Tract. Not. ad p. 903. Bernhardi states that in cases of presumed 
fraudulent bankruptcy, not only the accused, but also the witnesses, if 
suspected of concealing the truth, could be tortured. — Diss. Inaug. de Tort, 
cap. i. § iv. 

4 Zangeri Praefat. No. 32. — Tortura enim datur non ad liquidandum fac- 
tum sed personam. 

5 Process. Criminal. Tit. v. cap. ix. No. 17. 

6 De Usu et Ab. Tort. Th. ix. — Qui aliter procedit judex, equum cauda 
frenat et post quadrigas caballum jungifc* 

The history of criminal jurisprudence is full of such proceedings. Boyvin 
du Villars relates that during the war in Piedmont, in 1559, he released 
from the dungeons of the Marquis of Masserano an unfortunate gentleman 
who had been secretly kept there for eighteen years, in consequence of having 
attempted to serve a process from the Duke of Savoy on the marquis. His 
disappearance having naturally been attributed to foul play, his kindred 
prosecuted an enemy of the family, who, under stress of torture, duly con- 



MODERN GERMANY. 363 

We have seen above that the prisoner was entitled to 
see a copy of the evidence taken in secret against him ; yet 
von Rosbach states that judges were not in the habit of 
permitting it, though no authority justified them in the 
refusal ;' and half a century later this is confirmed by Bern- 
hardi, who gives as a reason that by withholding the pro- 
ceedings from the accused they saved themselves trouble. 3 
Even the inalienable privilege of being heard in his defence 
was habitually refused by many tribunals, which proceeded 
at once to torture after hearing the adverse evidence, and 
von Rosbach feels it necessary to argue at some length 
the propriety of hearing what the accused may have to 
say. 3 In the same way, the right to appeal from an order 
to torture was evaded by judges, who sent the prisoner to 
the rack without a preliminary formal order, thus depriving 
him of the opportunity of appealing.* 

If the irresponsible power which the secret inquisitorial 
process lodged in the hands of the judges was thus fear- 
fully abused in destroying all the safeguards provided for 
the prisoner by law, it was none the less so in disregarding 
the limitations provided against excessive torture. A uni- 
versal prescription existed that the torment should not be 
so severe or so prolonged as to endanger life or limb, or to 
permanently injure the patient; but Senckenberg assures 
us that he was personally cognizant of cases in which inno- 
cent persons had been crippled for life by torture under 
false accusations, 5 and the meek Jesuit Del Rio, in his 
instructions to inquisitors, quietly observes that the flesh 

fessed to having committed the murder, and was accordingly executed in a 
town where Masserano himself was residing. — Boyvin du Villars, Memoires 
Liv. vn. 

1 Process. Criminal. Tit. v. cap. x. No. 7. — Hodie vero judices reis captis 
non exhibent indiciorum exemplum, et procedunt ad torturam. Sed hasc 
opinio in jure undique refellitur, et ego senio confectus nunquam inveni 
aliquam legem seu rationem pro tali observantia. 

2 Diss. Inaug. cap. I. § xii. 3 Process. Criminal. Tit. v. cap. x. No. 8-16. 
4 Bernhardi loc. cit. 5 Not. ad p. 907 Zangeri op. cit. 



364 TORTURE. 

should not be wounded nor the bones broken, but that tor- 
ture could scarce be properly administered without more 
or less dislocation of the joints. 1 Yon Boden, moreover, 
very justly points out the impossibility of establishing any 
rules or limitations of practical utility, when the capacity 
of endurance varies so greatly in different constitutions, 
and the executioners had so many devices for heightening 
or lessening, within the established bounds, the agony 
inflicted by the various modes of torture allowed by law. 
Indeed, he does not hesitate to exclaim that human inge- 
nuity could not invent suffering more terrible than was 
constantly and legally employed, and that Satan himself 
would be unable to increase its refinements. 2 

It is true that the old rules which subjected the judge to 
some responsibility were still nominally in force. When 
torture was ordered without a preliminary examination, 
or when it was excessive and caused permanent injury, the 
judge was held by all authorities to have acted through 
malice, and his office was no protection against reclamation 
for damages. 3 Z anger also quotes the Roman law as still 
in force, to the effect that if the accused dies under the 
torture, and the judge has been either bribed or led away 
by passion, his offence is capital, while if there had been 
insufficient preliminary evidence, he is punishable at dis- 

1 Del Rio Magicar. Disquisit. Lib. v. sect. ix. — Ut corpus rei maneat vel 
illaesum vel modice laesum, salvum innocentise vel supplicio : illsesum, dico, 
quod ad carnis lacerationem aut ossium vel nervorum fracturam, nam quoad 
discompaginationem, sive disjunctionem juncturarum et ossium non immode- 
ratum vix in tormentis ea potest evitari. 

3 De Usu et Abusu Tort. Th. xiii. — Deinde quoque in ultimo torturae 
gradu concesso, summi quos humana malitia invenire potuit cruciatus, sine 
fine et modo sic adhiberi soleant, ut diabolum ipsum asperius quid quo cor- 
pori humano in bac vita noceat, excogitare posse dubium sit. 

It must not be supposed from this and the preceding extracts that von 
Boden was an opponent of torture on principle. Within certain bounds, he 
advocated its use, and he only deplored the excessive abuse of it by the 
tribunals of the day. 

3 Zangeri op. cit. cap. i. No. 42-44. 



MODERN GERMANY. 365 

cretion. 1 The secrecy of criminal trials, however, offered 
an almost impenetrable shield to the judge, and we are 
quite prepared to believe the assertion of Senckenberg that 
these rules had become obsolete, and that he had seen not 
a few instances of such violations of the law without there 
being any idea of holding the judge to accountability. 9 

Not the least of the evils of the system, indeed, was its 
inevitable influence upon the judge himself. He was re- 
quired by his office to be present during the infliction of 
torture, and to conduct the interrogatory personally. Cal- 
lousness to human suffering, whether natural or acquired, 
thus became a necessity, and the delicate conscientiousness 
which should be the moving principle of every Christian 
tribunal was well-nigh an impossibility. Nor was this all, 
for when even a conscientious judge had once taken upon 
himself the responsibility of ordering a fellow-being to the 
torture, every motive would lead him to desire the justifica- 
tion of the act by the extortion of a confession ; and the very 
idea that he might be possibly held to account abilit}^, in- 
stead of a safeguard for the prisoner, became a cause of. 
subjecting him to additional agony. 3 Both the good and 
the evil impulses of the judge were thus enlisted against 
the unfortunate being at his mercy. Human nature was 
not meant to face such temptations, and the fearful inge- 
nuity, which multiplied the endless refinements of torment, 
testifies how utterly humanity yielded to the thirst of 
wringing conviction from the weaker party to the unequal 
conflict, where he who should have been a passionless 

1 Zangeri cap. in. No. 20-22. 

2 Loc. cit. Hujus doctrinse forte hodie parvus usus, et vidi ipse exempla 
nonnulla ubi ne quidein de puniendo judiee eogitatum. 

3 The prudence of persevering in torture until a confession was reached 
was atleast recognized, if not advised, by jurists. " Occurrithic cautelaBruni 
dicentis, si judex indebite torserit aliquem, facit reum confiteri quod fuit 
legitime tortus, de qua confessione faciat notarium rogatum." (Jo. Em. a 
Kosb. Process. Crim. Tit. v. cap. xv. No. 6.) To suggest the idea was prac- 
tically to recommend it. 

31* 



366 TORTURE. 

arbiter was made necessarily a combatant. How completely 
the prisoner thus became a quarry to be hunted to the 
death is shown by the jocular remark of Farinacci, a cele- 
brated authority in criminal law, that the torture of sleep- 
lessness, invented by Marsiglio, was most excellent, for out 
of a hundred martyrs exposed to it not two could endure 
it without becoming confessors as well. 1 Tew, when once 
engaged in such a pursuit, could be expected to follow the 
example of the Milanese judge, who resolved his doubts as 
to the efficacy of torture in evidence by killing a favorite 
mule, and allowing the accusation to fall upon one of his 
servants. The man of course denied the offence, was duly 
tortured, confessed, and persisted in his confession after 
torture. The judge, thus convinced by experiment of the 
fallacy of the system, resigned the office whose duties he 
could no longer conscientiously discharge, and in his sub- 
sequent career rose to the cardiiialate. 3 

1 Quoted by Nicolas, Diss. Mor. et Jurid. sur la Torture, p. 21. This 
mode of torture consisted in placing the accused between two jailers, who 
pummelled him whenever he began to doze, and thus, with proper relays, 
deprived him of sleep for forty hours. Its inventor considered it humane, 
as it endangered neither life nor limb, but the extremity of suffering to 
which it reduced the prisoner is shown by its efficaciousness. 

1 have purposely abstained from entering into the details of the various 
forms of torture. They may be interesting to the antiquarian, but they 
illustrate no principle, and little would be gained by describing these melan- 
choly monuments of human error. Those who may be curious in such mat- 
ters will find ample material in Grupen Observat. Jur. Crim. de Applicat. 
Torment., 4to., Hanov. 1754; Zangeri op. cit. cap. IV. No. 9, 10; Hieron. 
Magius de Equuleo cum Appendd. Amstelod. 1664, etc. According to Bern- 
hardt Johann Graefe enumerates no less than six hundred different instru- 
ments invented for the purpose. 

2 I give this anecdote on the authority of Nicolas (op. cit. p. 169), who 
quotes it as a well-known circumstance, without furnishing either name or 
date. He also relates (p. 178) a somewhat similar case which was told to 
him at Amsterdam in explanation of the fact that the city was obliged to 
borrow a headsman from the neighboring towns whenever the services of one 
were required for an execution. It appears that a young man of Amsterdam, 
returning home late at night from a revel, sank upon a door-step in a 
drunken sleep. A thief emptied his pockets, securing, among other things, 



MODERN GERMANY. 36? 

In theory, the accused could be tortured only once, but 
this, like all other attempts to humanize the law, amounted 
to but little. A repetition of torture could be justified on 
the ground that the first application had been light or in- 
sufficient ; the production of fresh evidence authorized a 
second and even a third infliction ; a failure to persevere 
in confession after torture rendered a repetition requisite, 
and even a variation in the confession required confirmation 
by the rack or strappado. 1 

With all this hideous accumulation of cruelty which 
shrank from nothing in the effort to wring a confession 
from the wretched victim, that confession, when thus 
so dearly obtained, was estimated at its true worthless- 
ness. It was insufficient for conviction unless confirmed 
by the accused in a subsequent examination beyond the 
confines of the torture chamber. If then retracted, the 
accused was again tortured, when a second confession and 
retraction made an exceedingly awkward dilemma for the 
subtle jurisconsults. They agree that he should not be 
allowed to escape after giving so much trouble. Some advo- 
cated the regular punishment of his crime, others demanded 
for him an extraordinary penalty; some, again, were in 
favor of incarcerating him f others assumed that he should 

a dirk, with which, a few minutes later, he stabhed a man in a quarrel. 
Returning to the sleeper, he slipped the bloody weapon back to its place. 
The young man awoke, but, before he had taken many steps, he was seized 
by the watch, who had just discovered the murder. Appearances were 
against him; he was tortured, confessed, persisted in confession after tor- 
ture, and was duly hanged. Soon after, the real criminal was condemned 
for another crime, and revealed the history of the preceding one, whereupon 
the States General of the United Provinces, using the ordinary logic of the 
criminal law, deprived the city of Amsterdam of its executioner, as a punish- 
ment for a result that was inevitable under the system. 

1 Zangeri cap. v. No. 73-83. Some writers, however, authorize its repe- 
tition as often as may seem necessary to the judge (Rosbach op. cit. Tit. v. 
cap. xv. No. 14), and Del Rio mentions a case in Westphalia wherein a man 
accused of lycanthropy was tortured twenty times (Lib. v. Sect. ix.). 

2 Zangeri cap. v. No. 79-81. 



368 TORTURE. 

be tortured a third time, when a confession, followed as 
before by a recantation, released him from further torment, 
for the admirable reason that nature and justice alike 
abhorred infinity. 1 This was too metaphysical for some 
jurists, who referred the whole question to the discretion 
of the judge, with power to prolong the series of alternate 
confession and retraction indefinitely. 3 Others solved the 
knotty problem by judiciously advising that in the uncer- 
tainty of doubt as to his guilt, the prisoner should be 
soundly scourged and turned loose, after taking an oath 
not to bring an action for false imprisonment against his 
tormentors ; 3 but, according to some authorities, this kind 
of oath, or urpheda as it was called, was of no legal value. 4 
There were other curious inconsistencies in the system 
which manifest still more clearly the real estimate placed 
on confessions under torture. If the torture had been in- 
flicted by an over-zealous judge without proper preliminary 
evidence, confession amounted legally to nothing, even 
though proof were subsequently discovered. 5 If, on the 
other hand, absolute and incontrovertible proof of guilt 
were had, and the over-zealous judge tortured in surplusage 
without extracting a confession, the offender was absolved. 

1 Bernhardi Diss. Inaug. cap. i. § xi. 

2 Emer. a Rosbach, op. cit. Tit. v. cap. xviii. No. 13. So Beccaria, (De- 
litt. e Pene § xn.) — " Alcuni dottori ed alcune nazioni non permettono 
questa infame petizione di principio che per tre volte ; altre nazioni ed altri 
dottori la lasciano ad arbitrio del giudice." 

3 Zangeri loc. cit. 

4 Bernhardi, cap. I. § xii. Cf. Caroli V. Const. Crira. cap. xx. § 1. 
s Zangeri cap. n. No. 9-10 ; cap. v. No. 19-28. 

G Ibid. cap. v. No. 1-18. — Bigotry and superstition, however, did not 
allow their victims to escape so easily. In accusations of sorcery, if appear- 
ances were against the prisoner — that is, if he were of evil repute, if he shed 
no tears during the torture, and if he recovered speedily after each applica- 
tion — he was not to be liberated because no confession could be wrung from 
him, but was to be kept for at least a year, " squaloribus carceris mancipan- 
dus et cruciandus, saepissime etiam examinandus, prsecipue sacratioribus 
diebus." — Rickii Defens. Aq. Probae cap. I. No. 22. 



ATROCITY OF THE SYSTEM. 369 

If, again, a man and woman were tortured on an accusation 
of adultery committed with each other, and if one confessed 
while the other did not, both were acquitted. 1 Nothing more 
contradictory and illogical can well be imagined, and, as 
if to crown the absurdity of the whole, torture after con- 
viction was allowed in order to prevent appeals ; and if the 
unfortunate, at the place of execution, chanced to assert 
his innocence, he was often hurried from the scaffold to the 
rack in obedience to the theory that the confession must 
remain unretr acted. 2 One can scarcely repress a grim smile 
at finding that this series of horrors had pious defenders 
who urged that a merciful consideration for the offender's 
soul required that he should be brought to confess his 
iniquities in order to secure his eternal salvation. 3 

The atrocity of this whole system of so-called criminal 
justice is forcibly described by the honest indignation of 
Augustin Nicolas, who, in his judicial capacity under Louis 
XIV., had ample opportunities of observing its practical 
working and results. " The strappado, so common in Italy, 
and which yet is forbidden under the Roman law . . . The 
vigils of Spain, which oblige a man to support himself by 
sheer muscular effort for seven hours, to avoid sitting on a 
pointed iron, which pierces him with insufferable pain ; the 
vigils of Florence, or of Marsiglio, which have been de- 
scribed above ; our iron stools heated to redness, on which 
we place poor half-witted women accused of witchcraft, 
exhausted by frightful imprisonment, rotting from their 
dark and filthy dungeons, loaded with chains, fleshless, 
and half dead ; and we pretend that the human frame can 
resist these devilish practices, and that the confessions 
which our wretched victims make of everything that may 
be charged against them are true." 4 Under such a scheme 

1 Zangeri cap. v. No. 53-61. 

3 Boclen, op. cit. Th. v. vi. 
8 Ibid. 

4 Dissert. Mor. et Jurid. sur la Torture, p. 36-7. 



3t0 TORTURE. 

of jurisprudence, it is easy to understand and appreciate 
the case of the unfortunate peasant, sentenced for witch- 
craft, who, in his dying confession to the priest, admitted 
that he was a sorcerer, and humbly welcomed death as the 
fitting retribution for the enormous crimes of which he had 
been found guilty, but pitifully inquired of the shuddering 
confessor whether one could not be a sorcerer without 
knowing it. 1 

We have seen above how great was the part of the In- 
quisition in introducing and moulding the whole system 
of torture on the ruins of the Roman law. Even so, in the 
reconstruction of European jurisprudence, during the six- 
teenth and seventeenth centuries, the ardor of the inquisi- 
torial proceedings against witchcraft, and the panic on the 
subject which long pervaded Christendom, had a powerful 
influence in familiarizing the minds of men with the use of 
torture as a necessary instrument of justice, and in autho- 
rizing its employment to an extent which now is almost 
inconceivable. 

From a very early period, torture was recognized as in- 
dispensable in all trials for sorcery and magic. In 358, an 
edict of Constantius decreed that no dignity of birth or 
station should protect those accused of such offences from 
its application in the severest form. 3 How universal its 
employment thus became is evident from a canon of the 
council of Merida, in 666, declaring that priests, when 
sick, sometimes accused the slaves of their churches of 
bewitching them, and impiously tortured them against all 
ecclesiastical rules. 3 That all such crimes should be re- 
garded as peculiarly subjecting to the last extremity of 
torture all suspected of them is therefore natural, and its 

1 Nicolas, p. 169. s Const. 7 Cod. ix. xviii. 

s Similiter et quia comperimus aliquos presbyteros aegritudine accidente, 
familiae ecclesiae suae crimen imponere, dicente ex ea homines aliquos male- 
ficium sibi feeisse eosque sua potestate torquere, et per multam impietatem 
detrimentare.— Concil. Emeritan, ann. 666 can. xv. 



SORCERY AND WITCHCRAFT. 371 

use in the trials of witches and sorcerers came to be re- 
garded as indispensable. 

The necessity which all men felt that these crimes should 
be extirpated with merciless severity, and the impalpable 
nature of the testimony on which the tribunals had mostly 
to depend, added to this traditional belief in the fitness of 
torture. Witchcraft was considered as peculiarly difficult 
of proof, and torture consequently became an unfailing 
resource to the puzzled tribunal. Jacob Rickius, who, as 
a magistrate during an epidemic of witchcraft, at the close 
of the seventeenth century, had the fullest practical expe- 
rience on the subject, complains that no reliance could be 
placed on legal witnesses to procure conviction; 1 and Del 
Rio only expresses the general opinion when he avers that 
torture is to be more readily resorted to in witchcraft than 
in other crimes, in consequence of the extreme difficulty of 
its proof. 2 

Even the wide-spread belief that Satan aided his wor- 
shippers in their extremity by rendering them insensible 
to pain did not serve to relax the efforts of the extirpators 
of witchcraft, though they could hardly avoid the con- 
clusion that they were punishing only the innocent, and 
allowing the guilty to escape. Various means they em- 
ployed to circumvent the arch-enemy, of which the one 
most generally adopted was that of shaving the whole per- 
son carefully before applying the torture; 3 but notwith- 

1 Per legales testes hujus rei ad convincendum fides certa haberi non 
potest. — Rickii Defens. Aquae Probae cap. in. No. 117. 

2 Idque facilius in excepto et occulto difficilisque probationis crimine 
nostro sortilegii admiserim quam in aliis. — Disquisit. Magiear. Lib. v. Sect. 
iii. No. 8. 

3 Nicolas (p. 145) inveighs with honest indignation at the frightfully in- 
decent outrages to which female prisoners were subjected in obedience to 
this superstition. The curious reader will find in Del Rio (Lib. v. Sect, ix.) 
ample details as to the arts of the Evil One to sustain his followers against 
the pious efforts of the Inquisition. There was so general a belief among 
enlightened men that criminals of all kinds had secrets to deaden the suffer- 



3*72 TORTURE. 

standing all the precautions of the most experienced exor- 
cists, we find in the bloody farce of Urbain Grandier that 
the fiercest torments left him in capital spirits and good 
humor. 1 The tender-hearted Rickius was so convinced of 
this source of uncertainty that he was accustomed to ad- 
minister the cold water ordeal to all the miserable old 
women brought before him on such charges, but he is careful 
to inform us that this was only preparatory proof, to enable 
him with a safer conscience to torture those who were so 
ill-advised as to float instead of sinking. 3 

When the concentrated energies of these ingenious and 
determined law dispensers failed to extort by such means 
a confession from the wretched clowns and gossips thus 
placed at their mercy, they were even yet not wholly at 
fault. The primitive teachings of the Inquisition of the 
thirteenth century were not yet obsolete, and they wefe 
instructed to treat the prisoner kindly ; to introduce into 
his dungeon some prepossessing agent who should make 
friends with him and induce him to confess what was wanted 
of him, promising to influence the judge to pardon ; at that 
moment the judge is to enter the cell and to promise mercy, 
with the mental reservation that his mercy should be shown 

ings of torture, that it is quite likely the unfortunates were sometimes able 
to strengthen their endurance with some anassthetic. 

1 " Q'apres qu'on eut lave ses jambes, qui avoient ete dechirees par la 
torture, et qu'on les eut presentees au feu pour y rapeller quelque peu d'esprits 
et de vigueur, il ne cessa pas de s'entretenir avec ses Gardes, par des dis- 
cours peu serieux et pleins de railleries; qu'il mangea avec apetit et but 
avec plaisir trois ou quatre coups ; et qu'il ne repandit aucuns larmes en souf- 
frant la question, ni apres l'avoir soufferte, lors meme qu'on l'exorcisa de 
l'exorcisme des Magiciens, et que l'Exorciste lui dit a plus de cinquante re- 
prises 'praecipio ut si sis innocens effundas lachrymas.' " — Hist, des Diables 
de Loudon, pp. 157-8. 

2 Tunc non quaestioni subjiciebantur statim, sed pro confortatione prae- 
cidentium indiciorum, probam aquae adhibebamus primitus, non ad convin- 
cendam earn per hinc, sed praeparandum et muniendum torturae viam. — 
Rickii op. cit. cap. i. No. 24.. 



SORCERY AND WITCHCRAFT. 373 

to the community and not to the prisoner.' Or, still fol- 
lowing the ancient traditions, the unhappy wretch was to 
be told that his associate prisoners had borne testimony 
against him, in order to induce him to revenge himself by 
turning witness against them. 2 

When the law thus pitilessly turned all the chances 
against the victim, it is easy to understand that few 
escaped. In the existing condition of popular frenzy on 
the subject, there was no one but could feel that he might 
at any moment be brought under accusation by personal 
enemies or by unfortunates compelled on the rack to declare 
the names of all whom they might have seen congregated 
at the witches' sabbat. We can thus readily comprehend 
the feelings of those who, living under such uncertainties, 
coolly and deliberately made up their minds in advance 
that, if chance should expose them to suspicion, they would 
at once admit everything that the inquisitors might desire 
of them, preferring a speedy death to one more lingering 
and scarcely less certain. 3 The evil fostered with such 
careful exaggeration grew to so great proportions that one 
judge, in a treatise on the subject, boasted of his zeal and 
experience in having dispatched within his single district 
nine hundred wretches in the space of fifteen years, and 

1 Bodinus went so far as to authorize the judge to entrap the prisoner with 
absolute falsehoods — "falsis promissis." Del Rio (Lib. v. Sect, x.) loftily 
pronounces this inadmissible, and then proceeds to draw a distinction between 
dolum malum and dolum bonum. He forbids a lie, but advises equivocation 
and ambiguous promises, and if the prisoner is deceived, he has only him- 
self to thank for it — " Poterit judex uti asquivocatione et verbis subdolis 
(citra mendacium) et ambigua promissione liberationis, ut reum inducat ad 
fatendum veritatem." He quotes from Sprenger tbe device alluded to in the 
text — "judex . . . promittat facere gratiam, subintelligendo sibi vel reipub. 
in cujus conservationem totum quod sit est gratiosum." The pun upon the 
word "gratia,'" on which a human life is made to depend, is scarcely trans- 
latable. 

3 Nicolas (p. 144), from Bodin. Lib. iv. 

3 Father Tanner states that he had this from learned and experienced men. 
(Nicolas, p. 10G.) 
32 



374 TORTURE. 

another trustworthy authority relates with pride that in 
the diocess of Como alone as many as a thousand had been 
burnt in a twelvemonth, while the annual average was 
over a hundred. 1 

In this long history of legalized cruelty and wrong, the 
races of northern Europe are mostly exceptional. Yet it is 
somewhat remarkable that the first regular mediaeval code 
in which torture is admitted as a means of investigation is 
the one of all others in which it would be least expected. 
The earliest extant law of Iceland, the Gragas, which dates 
from 1119, has one or two indications of its existence, 
which are interesting as being purely autochthonic, and in 
no sense derivable, as in the rest of Europe, from the 
Roman law. The character of the people, indeed, and of 
their institutions would seem to be peculiarly incompatible 
with the use of torture, for almost all cases were submitted 
for decision to juries of the vicinage, and, when this was 
unsuitable, resort was had to the ordeal. The indigenous 
origin of the custom, however, is shown by the fact that 
while it was used in but few matters, the most prominent 
class subjected to it was that of pregnant women, who have 
elsewhere been spared by the common consent of even the 
most pitiless legislators. An unmarried woman with child, 
who refused to name her seducer, could be forced to do so 
by moderate torments which should not break or discolor 
the skin. 3 When the inhabitants of a district, also, refused 
to deliver up a man claimed as an outlaw by another dis- 
trict, they were bound to torture him to ascertain the truth 
of the charge" — a provision doubtless explicable by the 

1 Nicolas, p. 164. 

3 " Ita torquatur ut nee plagam referat nee color cutis livescat." — Gragas, 
Festathattr cap. xxxiii. The object of this was to enable the family to obtain 
the fine from the seducer, and to save themselves the expense of supporting the 
child. When the mother confessed, however, additional evidence was re- 
quired to convict the putative father. 

3 Ibid. Vigslothi cap. cxi. 



THE SCANDINAVIAN NATIONS. 3T5 

important part occupied by outlawry in all the schemes of 
Scandinavian legislation. These are the only instances in 
which it is permitted, while its occasional abuse is shown 
by a section providing punishment for its illegal employ- 
ment. 1 Slaves, moreover, under the Icelandic, as under 
other codes, had no protection at law, and were at the 
mercy of their masters. 3 These few indications of the 
liability of freemen, however, disappear about the time 
when the rest of Europe was commencing to adopt the use 
of torture. In the " Jarnsida," or code compiled for Ice- 
land by Hako Hakonsen of Norway, in 1258, there is no 
allusion whatever to its use. 

The Scandinavian nations, as a whole, did not admit 
torture into their systems of jurisprudence. The institution 
of the jury in various forms was common to all, and where 
proof upon open trial was deficient, they allowed, until a 
comparatively recent date, the accused to clear himself by 
sacramental purgation. Thus, in the Danish laws of Wal- 
demar II., to which the date of 1240 is generally assigned, 
there is a species of permanent jury, sandemend, as well 
as a temporary one, nefninge, and torture seems to have 
formed no part of judicial proceedings. 3 This code was in 
force until 1683, when that of Christiern Y. was promul- 
gated. It is probable that the use of torture may have 
crept in from Germany, without being regularly sanctioned, 
for we find Christiern forbidding its use except in cases of 
high treason, where the magnitude of the offence seems to 
him to justify the infraction of the general rule. 4 He, how- 

1 Grag&s, Vigslothi cap. lxxxviii. 

2 Schlegel, Comment, ad Gragtls § xxix. 

3 Leg. Cimbric. Woldemari Lib. n. cap. i., xl. (Ed. Ancher, Hafniae, 1783). 

4 Christiani V. Jur. Danic. Lib. i. cap. xx. (Ed. Weghorst, Hafniae, 1698). 
"De nemine habenda est quarstio, nisi propter facinus capite sit condem- 
natus ; excepto laesae majestatis crimine, quod in summo gradu admissum 
fuerit. Hie enim causae qualitas impedimento est quominus processus ordi- 
narius observari possit." 

Senckenberg (Corp. Jur. German. T. I. Praef. p. Ixxxvi.) gives the chapter 



376 TORTURE. 

ever, encouraged one of its greatest abuses in permitting it 
on criminals condemned to death. 

So, in Sweden, the code of Raguald, compiled in 1441 
and in force until 1614, during a period in which torture 
nourished in almost every European state, has no place for 
it. Trials are conducted before twelve nempdarii, or jury- 
men, and in doubtful cases the accused is directed to clear 
himself by oath or by conjurators. For atrocious crimes 
the punishments are severe, such as the wheel or the stake, 
but inflictions like these are reserved for the condemned. 1 
Into these distant regions the Roman jurisprudence pene- 
trated slowly, and the jury trial was an elastic institution 
which adapted itself to all cases. 

To the same causes may be attributed the absence of 
torture from the Common Law of England. In common 
with the other Barbarian races, the Anglo-Saxons solved 
all doubtful questions by the ordeal and wager of law, and 
in the collection known as the laws of Henry I. a prin- 
ciple is laid down which is incompatible with the whole 
theory of torture, whether used to extract confession or 
evidence. A confession obtained by fear or fraud is pro- 
nounced invalid, and no one who has confessed his own 
crime is to be believed with respect to that of another.' 3 
Such a principle, combined with the gradual growth of 
the trial by jury, doubtless preserved the law from the 
contamination of inquisitorial procedure, though, as we 

heads of a code in Danish, the Keyser Retenn, furnished to him by Ancher, 
in which cap. iv. and v. contain directions as to the administration of torture. 
The code is a mixture of German, civil, and local law, and probably was in 
force in some of the Germanic provinces of Denmark. 

The Frisian code of 1323 is a faithful transcript of the primitive Barbarian 
jurisprudence. It contains no allusion to torture, and as all crimes, except 
theft, were still compounded by wehr-gilds, it may safely be assumed that 
extorted confession was unknown (Leges Opstalbomicae ann. 1323, published 
by Gartner, Saxonum leges tres, Lipsiae, 1730). 

1 Raguald. Ingermund. Leg. Suecor., Stockholmise, 1623. 

3 Et nemini de se confesso super alienum crimen credatur : confessio vero 
per metum vel per fraudem extorta non valet. — LI. Henrici I. cap. v. § 16. 



ENGLAND. 377 

have seen, torture was extensively employed for purposes 
of extortion by marauders and lawless nobles during pe- 
riods of civil commotion. Glanville makes no allusion to 
it, and though Bracton shows a wide acquaintance with the 
revived Roman jurisprudence, and makes extensive use of 
it in all matters where it could be advantageously har- 
monized with existing institutions, he is careful to abstain 
from introducing torture into criminal procedure. 1 A clause 
in Magna Charta, indeed, has been held by high authority 
to inhibit the employment of torture, but it has no direct 
allusion to the subject, which was not a living question at 
the time, and was probably not thought of by any of the 
parties to that transaction; moreover, it was not, at a 
later period, held by any one to interfere with the royal 
prerogative, whenever the King desired to test with the 
rack the endurance of his loving subjects. 3 

Under the common law, therefore, torture had no exist- 
ence in England, and the character of the national institu- 

1 Many interesting details on the influence of the Roman law upon that 
of England will be found in the learned work of Carl Giiterbock, " Bracton 
and his Relation to the Roman Law," recently translated by Brinton Coxe 
(Philadelphia, 1866). The subject is one which well deserves a more tho- 
rough consideration than it is likely to receive at the hands of English 
writers. 

It is curious to observe that the crimen Icesce rnajestatis makes its appear- 
ance in Bracton (Lib. m. Tract, ii. cap. 3 § 1), about the middle of the 
thirteenth century, earlier than in France, where, as we have seen, the first 
allusion to it occurs in 1315. This was hardly to be expected, when we con- 
sider the widely different influences exerted upon the jurisprudence of the 
two countries by the Roman law. 

3 The passage which has been relied on by lawyers is chap. xxx. : " Null us 
liber homo capisftur. vel imprisonetur, aut dissaisiatur, aut utlagetur. aut 
aliquo modo destruatur ; nee super eum ibimus, nee super eum mittemus, 
nisi per legale judicium parium suorum, vel per legem terra?." If the law 
just above quoted from the collection of Henry I. could be supposed to be 
still in force under John, then this might possibly be imagined to bear some 
reference to it ; but it is evident that had torture been an existing grievance, 
such as outlawry, seizure, and imprisonment, the barons would have been 
careful to include it in their enumeration of restrictions. 

32* 



378 TORTURE. 

tions kept at bay the absorbing and centralizing influences 
of the Roman law. 1 Yet their wide acceptance in France, 
and their attractiveness to those who desired to wield ab- 
solute authority, gradually accustomed the crow r n and the 
crown lawyers to the idea that torture could be adminis- 
tered by order of the sovereign. Sir John Fortescue, who 
was Lord Chancellor under Henry VI., inveighs at great 
length against the French law for its cruel procedures, 
and with much satisfaction contrasts it with the English 
practice, 2 and yet he does not deny that torture was occa- 
sionally used in England. 3 An instance of its application 
in 1468 has been recorded, which resulted in the execution 
of Sir Thomas Coke, Lord Mayor of London; 4 and in 1485, 
Innocent Till, remonstrated with Henry TIL respecting 
some proceedings against ecclesiastics who were scourged, 
tortured, and hanged. 5 

Under Henry Till, and his children, the power of the 
crown was largely extended, and the doctrine became 
fashionable that, though no one could be tortured for con- 
fession or evidence by the law, yet outside and above 
the law the royal prerogative was supreme, and that a 
warrant from the King in Privy Council fully justified the 
use of the rack and the introduction of the secret inquisi- 
torial process, with all its attendant cruelty and injustice. 
It is difficult to conceive the subserviency which could 
reconcile men, bred in the open and manly justice of the 

1 The jealousy with which all attempted encroachments of the Roman law 
were repelled is manifested in a declaration of Parliament in 1388. "Que ce 
royalme d ; Engleterre n'estait devant ces heures, ne a l'entent du roy nostre 
dit seignior et seigniors du parlement unque ne serra rule et governe par la 
ley civill." — Rot. Pari., 11 Ric. II. (Giiterbock, op. cit. p. 13). 

2 Du Cange, s. v. Tortura. 

3 See Jardine's "Reading on the Use of Torture in the Criminal Law of 
England," p. 7 (London, 1837), a condensed and sufficiently complete 
account of the subject under the Tudors and Stuarts. 

4 Jardine, loc. cit. 

5 Partim tormentis subjecti, partim crudelissime laniati, et partim etiam 
furca suspensi fuerant. — Wilkins Concil. III. 617. 



ENGLAND. 379 

common law, to a system so subversive of all the principles 
in which they had been trained. Yet the loftiest names of 
the profession were concerned in transactions which the}' 
knew to be in contravention of the laws of the land. 

Sir Thomas Smith, one of the ornaments of the Eliza- 
bethan bar, condemned the practice as not only illegal, but 
illogical. "Torment or question, which is used by order 
of the civile law and custome of other countries, .... is 

not used in England The nature of Englishmen is 

to neglect death, to abide no torment ; and therefore hee 
will confesse rather to have done anything, yea, to have 
killed his owne father, than to suffer torment." And 3-et, 
a few years later, we find the same Sir Thomas writing to 
Lord Burghley. in 1571, respecting two miserable wretches 
whom he was engaged in racking under a warrant from 
Queen Elizabeth. 1 

In like manner, Sir Edward Coke, in his Institutes, de- 
clares — " So, as there is no law to warrant tortures in this 
land, nor can they be justified by any prescription, being 
so lately brought in." Yet, in 1603, there is a warrant 
addressed to Coke and Fleming, as Attorney and Solicitor 
General, directing them to apply torture to a servant of 
Lord Hundsdon, who had been guilty of some idle speeches 
respecting King James, and the resultant confession is in 
Coke's handwriting, showing that he personally superin- 
tended the examination. 2 

Coke's great rival, Lord Bacon, was as subservient as 
his contemporaries. In 1619, while Chancellor, we find 
him writing to King James concernino- a prisoner confined 
in the Tower on suspicion of treason — "If it may not be 
done otherwise, it is fit Peacock be put to torture. He 
deserveth it as well as Peacham did." 3 

1 Jardine, op. eit. pp. 8-9, 24-5. It is due to Sir Thomas to add that he 
earnestly begs Lord Burghley to release him from so uncongenial an employ- 
ment. - Ibid. pp. 8, 47. 

' Work?, Philadelphia, IS-lfi. III. 120. Peacham was an unfortunate eler- 



380 TORTURE. 

As in other countries, so in England, when torture was 
once introduced, it rapidly broke the bounds which the 
prudence of the Roman lawgivers had established for it. 
Thus, it was not only in cases of high treason that the 
royal prerogative was allowed to transgress the limits of 
the law. Matters of religion, indeed, in those times of 
perennial change, when dynasties depended on dogmas, 
might come under the comprehensive head of constructive 
treason, and be considered to justify the torture even of 
women, as in the instance of Ann Askew in 1546 ; l and of 
monks guilty of no crime but the endeavor to preserve 
their monasteries by pretended miracles; 2 but numerous 
cases of its use are on record, which no ingenuity can re- 
move from the sphere of the most ordinary criminal busi- 
ness. Suspicion of theft, murder, horse-stealing, embezzle- 
ment, and other similar offences was sufficient to consign 
the unfortunate accused to the tender mercies of the rack, 
the Scavenger's Daughter, and the manacles, when the 
aggrieved person had influence enough to procure a royal 

gyman in whose desk was found a MS. sermon, never preached, containing 
some unpalatable reflections on the royal prerogative, and the prerogative 
asserted itself by putting him on the rack. 

1 Burnet, Hist. Reform. Bk. in. pp. 341-2. 

2 According to Nicander Nucius (Travels, Camden Soc. 1841), pp. 58, 62, 
the investigation of these deceptions with the severest tortures, ?sta-dvoic 
apoyhTon, was apparently the ordinary mode of procedure. 

3 Sir William Skevington, a lieutenant of the Tower, under Henry VIII. , 
immortalized himself by reviving an old implement of torture, consisting 
of an iron hoop, in which the prisoner was bent, heels to hams and chest to 
knees, and thus crushed together unmercifully. It obtained the nickname 
of Skevington's daughter, corrupted in time to Scavenger's Daughter. 
Among other sufferers from its embraces was an unlucky Irishman, named 
Myagh, whose plaint, engraved on the wall of his dungeon, is still among 
the curiosities of the Tower : — 

" Thomas Miagh, which liethe here alone, 
That fayne wold from hens begon ; 
By torture straunge mi truth was tryed, 
Yet of my libertie denied. 
1581. Thomas Myagh."— Jardine, op. cit. pp. IS, 30. 



ENGLAND. 381 

warrant ; nor were these proceedings confined to the secret 
dungeons of the Tower, for the records show that torture 
began to be habitually applied in the. Bridewell. Jardine, 
however, states that this especially dangerous extension of 
the abuse appears to have ceased with the death of Eliza- 
beth, and that no trace of the torture of political prisoners 
can be found later than the year 1640. 1 The royal pre- 
rogative had begun to be too severely questioned to render 
such manifestations of it prudent, and the Great Rebellion 
settled the constitutional rights of the subject on too secure 
a basis for even the time-serving statesmen of the Restora- 
tion to venture on a renewal of the former practices. Yet 
how nearly, at one time, it had come to be engrafted on 
the law of the land is evident from its being sufficiently 
recognized as a legal procedure for persons of noble blood 
to claim immunity from it, and for the judges to admit 
that claim as a special privilege. In the Countess of 
Shrewsbury's case, the judges, among whom was Sir Ed- 
ward Coke, declared that there was a "privilege which the 
law gives for the honor and reverence of the nobility, that 
their bodies are not subject to torture in causa criminis 
l&sse majestatis ;" and no instance is on record to disprove 
the assertion. 3 

In one class of offences, however, torture was frequently 
used to a later date, and without requiring the royal inter- 
vention. As on the Continent, sorcery and witchcraft 
were regarded as crimes of such peculiar atrocity, and the 
aversion they excited was so universal and intense, that 
those accused of them were practically placed beyond the 
pale of the law, and no means were considered too severe 
to secure the conviction which in many cases could only be 
obtained by confession. We have seen that among the 
refinements of Italian torture, the deprivation of sleep for 
forty hours was considered by the most experienced autho- 

1 Jardine, pp. 53, 57-8. ' Op. eit. p. 65. 



382 TORTURE. 

rities on the subject to be second to none in severity and 
effectiveness. It neither lacerated the flesh, dislocated the 
joints, nor broke the bones, and yet few things could be 
conceived as more likely to cloud the intellect, break down 
the will, and reduce the prisoner into a frame of mind in 
which he would be ready to admit anything that the ques- 
tions of his examiners might suggest to him. In English 
witch trials, this method of torture was not infrequently 
resorted to, without the limitation of time to which it was 
restricted by the more experienced jurists of Italy. 1 

In Scotland, torture, as a regular form of judicial inves- 
tigation, was of late introduction. In the various codes 
collected by Skene, extending from an early period to the 
commencement of the fifteenth century, there is no allusion 
whatever to it. In the last of these codes, adopted under 
Robert III., by the Parliament of Scotland in 1400, the 
provisions respecting the wager of battle show that torture 
would have been superfluous as a means of supplementing 
deficient evidence. 3 The influence of the Roman law, how- 
ever, though late in appearing, was eventually much more 
deeply felt in Scotland than in the sister kingdom, and 
consequently torture at length came to be regarded as an 
ordinary resource in doubtful cases. In the witch perse- 
cutions, especially, which in Scotland rivalled the worst 
excesses of the Inquisition of Germany and Spain, it was 
carried to a pitch of frightful cruelty which far transcended 

1 Lecky, Hist, of Rationalism, Am. ed. I. 122. — In his very interesting 
work, Mr. Lecky mentions a case, occurring under the Commonwealth, of 
an aged clergyman named Lowes, who, after an irreproachable pastorate of 
fifty years, fell under suspicion. "The unhappy old man was kept awake 
for several successive nights, and persecuted 'till he was weary of his life, 
and was scarcely sensible of what he said or did.' He was then thrown 
into the water, condemned, and hung." — Ibid. p. 126. The "pricking," 
or thrusting of pins into all parts of the body, in order to discover the in- 
sensible spot, which, according to popular belief, was one of the essential 
peculiarities of the witch, was also a kind of indirect torture. 

3 Statut. Roberti III. cap. xvi. (Skene). 



SCOTLAND. 383 

the limits assigned to it elsewhere. 1 Indeed, it is difficult 
to believe that the accounts which have been preserved to 
us of these terrible scenes are not exaggerated. No cruelty 
is too great for the conscientious persecutor who believes 
that he is avenging his God, but the limitless capacity of 
human nature for inflicting is not complemented by a 
limitless capacity of endurance on the part of the victim ; 
and well authenticated as the accounts of the Scottish 
witch-trials may be, they seem to transcend the possibility 
of human strength. 2 Torture thus maintained its place in 
the law of Scotland as long as the kingdom preserved the 
right of self-legislation, and it was not abolished until after 
the Union, when, in 1109, the United Parliament made 

1 Thus the vigils, which elsewhere consisted simply in keeping the ac- 
cused awake for forty hours hy the simplest modes, in Scotland were fear- 
fully aggravated by a band of iron fastened around the face, with four di- 
vergent points thrust into the mouth. With this the accused was secured 
immovably to a wall, and cases are on record in which this insupportable 
torment was prolonged for five and even for nine days. — Lecky, op. cit. I. 
145-6. 

2 I quote from Mr. Lecky (p. 147), who gives as his authority " Pitcairn's 
Criminal Trials of Scotland." 

"But others and perhaps worse trials were in reserve. The three prin- 
cipal that were habitually applied were the penniwinkis, the boots, and the 
caschielawis. The first was a kind of thumbscrew j the second was a frame 
in which the leg was inserted, and in which it was broken by wedges driven 
in by a hammer ; the third was also an iron frame for the leg, which was 
from time to time heated over a brazier. Fire matches were sometimes 
applied to the body of the victim. We read, in a contemporary legal register, 
of one man who was kept for forty-eight hours in ' vehement tortour' in 
the caschielawis ; and of another who remained in the same frightful machine 
for eleven days and eleven nights, whose legs were broken daily for fourteen 
days in the boots, and who was so scourged that the whole skin was torn 
from his body." These cases occurred in 1596. 

These horrors are almost equalled by those of another trial in which a 
Dr. Fian was accused of having caused the storms which endangered the 
voyage of James I. from Denmark in 1590. James personally superintended 
the torturing of the unhappy wretch, and after exhausting all the torments 
known to the skill and experience of the executioners, he invented new 
ones. All were vain, however, and the victim was finally burnt without 
confessing his ill-deeds. {Ibid. p. 123.) 



384 TORTURE. 

haste, at its second session, to pass an act for " improving 
the Union," by which it was done away with. 1 

A system of procedure, which could lead to results so 
deplorable as those which we have seen accompany it 
everywhere, could scarcely fail to arouse the opposition of 
independent men who were not swayed by reverence for pre- 
cedent or carried away by popular impulses. Accordingly, 
an occasional voice was raised in denunciation of the use 
of torture. The sceptic of the sixteenth century, Mon- 
taigne, for instance, was too cool and clear-headed not to 
appreciate the vicious principle on which it was based, and 
he did not hesitate to stamp it with his reprobation. " To 
tell the truth, it is a means full of uncertainty and danger ; 
what would we not say, what would we not do to escape 
suffering so poignant? whence it happens that when a 
judge tortures a prisoner for the purpose of not putting an 
innocent man to death, he puts him to death both innocent 
and tortured. .... Are you not unjust when, to save him 
from being killed, you do worse than kill him ?" a In 1624, 
the learned Johann Graefe, in his " Tribunal Reformatum," 
argued forcibly in favor of its abolition. When the French 
Ordonnance of 16 TO was in preparation, various magistrates 
of the highest character and largest experience gave it as 

1 7 Anne c. 21. — While thus legislating for the enlightenment of Scotland, 
the English majority took care to retain the equally barbarous practice of 
the peine forte et dure. This was not strictly a torture for investigation, 
but a punishment, which was inflicted on those who refused to plead either 
guilty or not guilty. After its commencement, the unfortunate wretch was 
not allowed to plead, but was kept under the press until death, "donee 
oneris, frigoris atque famis cruciatu extinguitur." — See Hale, Placit. Coron. 
c. xliii. This relic of barbarism was not abolished until 1772, by 12 Geo. 
III. c. 20. 

2 Essais, Liv. n. chap. v. — Montaigne illustrates his position by a story 
from Froissart, who relates that an old woman complained to Bajazet that 
a soldier had foraged on her. The Turk summarily disposed of the soldier's 
denial by causing his stomach to be opened. He proved guilty — but what 
had he been found innocent? 



REMONSTRANCE. 385 

their fixed opinion that torture was useless, that it rarely 
succeeded in eliciting the truth from the accused, and that 
it ought to be abolished. 1 Towards the close of the century, 
various writers took up the question. The best known of 
these was perhaps Augustin Nicolas, who has been fre- 
quently referred to above, and who argued with more zeal 
and learning than skill against the whole system, but espe- 
cially against it as applied by the Inquisition in cases of 
witchcraft. 3 In 1692, von Boden, in a work alluded to in 
the preceding pages, inveighed against its abuses, while 
admitting its utility in many classes of crimes. In 1705, 
at the University of Halle, Martin Bernhardi of Pomerania, 
a candidate for the doctorate, in his inaugural thesis, 
argued with much vigor in favor of abolishing it, and the 
dean of the faculty, Christian Thomas, acknowledged the 
validity of his reasoning, though expressing doubts as to 
the practicability of a sudden reform. Bernhardi states that 
in his time it was no longer employed in Holland, and its 
disuse in Utrecht he attributes to a case in which a thief 
procured the execution, after due torture and confession, 
of a shoemaker, against whom he had brought a false 
charge in revenge for the refusal of a pair of boots. 3 

These efforts had little effect, but they manifest the pro- 

1 Des magistrats recommendables par une grande capacite et par une 
experience consommee, s'etant expliques sur ce genre de question, auroient 
declare qu'elle leur avoit toujours semble inutile, qu'il etoit rare que la ques- 
tion preparatoire eut tire la verite de la bouche d'un accuse, et qu'il y avoit 
de fortes raisons pour en supprimer l'usage. — Declaration du 24 Aout, 1780 
(Isambert, XXVII. 374). 

2 Nicolas is careful to assert his entire belief in the existence of sorcery and 
his sincere desire for its punishment, and he is indignant at the popular 
feeling which stigmatized those who wished for a reform in procedure as " avo- 
cats des sorciers." 

3 Bernhardi Diss. Inaug. cap. n. §§ iv., x. — Bernhardi ventured on the 
use of very decided language in denunciation of the system. — " Injustnm, 
iniquam, fallacem, insignium malorum promotricem, et denique omni divini 
testimonii specie destitutam esse hanc violentam torturam et proinde ex foris 
Christianorum rejiciendam intrepide assero." (Ibid. cap. i. § 1.) 

33 



386 TORTURE. 

gress of enlightenment, and doubtless paved the way for 
change, especially in the Prussian territories. Yet, in It 30, 
we find the learned Baron Senckenberg reproducing Z an- 
ger's treatise, not as an archaeological curiosity, but as a 
practical text-book for the guidance of lawyers and judges. 
Ten years later, however, the process of reform began in 
earnest. Frederic the Great succeeded to the throne of 
Prussia, May 31, H40. Few of his projects of universal 
philanthropy and philosophical regeneration of human 
nature survived the hardening experiences of royal ambi- 
tion, but, while his power was yet in its first bloom, he 
made haste to get rid of this relic of mediaeval barbarism. 
It was almost his earliest official act, for the cabinet order 
abolishing torture is dated June 3d. 1 Yet even Frederic 
could not absolutely shake off the traditional belief in its 
necessity when the safety of the State or of the head of the 
State was concerned. Treason and rebellion and some 
other atrocious crimes were excepted from the reform ; and 
in 1752, at the instance of his high chancellor, Cocceji, by 
a special rescript, he ordered two citizens of Oschersleben 
to be tortured on suspicion of robbery.* With singular 
inconsistency, moreover, torture in a modified form was 
long permitted in Prussia, not precisely as a means of in- 
vestigation, but as a sort of punishment for obdurate 
prisoners who would not confess, and as a means of mark- 
ing them for subsequent recognition. 3 It is evident that 
the abrogation of torture did not carry with it the removal 
of the evils of the inquisitorial process. 

1 Carlyle, Hist. Friedrich II. Book xi. ch. i. 

3 I find this statement in an account by G. F. Gunther (Lipsiae, 1838) of 
the abolition of torture in Saxony. 

3 Gunther, op. cit. — It appears that the authorities of Leipzig, in 1769, 
when asked their opinion on the subject, reported their approval of the plan 
then followed in the Prussian dominions. — " In terris Borussicis tormenta 
non plane esse abrogata, sed interdum adhuc adhiberi, non tantum ut rei 
facinora commissa confiteri cogantur, sed etiam ne, qui pertinaciter nega- 
rent, plane impunes evaderent; imo interdum torqueri quasi memorise causa, 
videlicet ut nefarii homines, si rursus deliquerent, facilius cognoscerentur." 



ABROGATION. 38*7 

When the royal philosopher of Europe thus halted in 
the reform, it is not singular that the more conservative 
monarchs around him should have paused before commit- 
ting themselves to so great an innovation. From 1770 to 
1783, Saxony was engaged in a thorough remodelling of her 
system of criminal jurisprudence, in which the whole appa- 
ratus of torture was swept away ; and in Switzerland and Aus- 
tria it shared a like fate about the same time. In Russia, 
the Empress Catherine, in 1762, removed it from the jurisdic- 
tion of the inferior courts, where it had been greatly abused ; 
in 17 61, by a secret order, it was restricted to cases in 
which the confession of the accused proved actually indis- 
pensable, and even in these it was only permitted under 
special commands of governors of provinces. 1 These limita- 
tions naturally soqn rendered it almost obsolete, and it was 
finally abolished in 1801. Yet, in some of the states of 
Central Europe, the progress of enlightenment was wonder- 
fully slow. Torture continued to disgrace the jurispru- 
dence of Wirtemberg and Bavaria until 1806 and 1807 ; and 
even the Napoleonic wars were unable to eradicate it, for 
Hanover retained it until 1822, and Baden until 1831. 3 

Even France had maintained a conservatism which may 
seem surprising in that centre of the philosophic specula- 
tion of the eighteenth century. Her leading writers had 
not hesitated to condemn it. In the "Esprit des Lois," 
published in 1748, Montesquieu stamped his reprobation 
on the system with a quiet significance which showed that 
he had on his side all the great thinkers of the age, and that 
he felt argument to be mere surplusage. 3 Voltaire did not 

1 Du Boys, Droit Criminel des Peuples Modernes, I. 620. 

2 Jardine, Use of Torture in England, p. 3. 

3 Tant d'habiles gens et tant de beaux genies ont ecrit contre eette pra- 
tique que je n'ose parler apres eux. J'allois dire qu'elle pourroit convenir 
dans les gouvernements despotiques ; oil tout qui inspire la crainte entre 
plus dans les ressorts du gouvernement : j'allois dire que les esclaves, chez 

les Grecs et chez les Bomains Mais j'entends la voix de la nature qui 

erie contre moi — Liv. vi. ch. xvii. 



388 TORTURE. 

allow its absurdities and incongruities to escape, and in 
1*1*1*1 he addressed an earnest request to Louis XYI. to 
include it among the subjects of the reforms which marked 
the opening of his reign. 1 Yet it was not until 1180 that 
the question preparatoire was abolished by a royal edict 
which, in a few weighty lines, indicated that only the reve- 
rence for traditional usage had preserved it so long. 2 It is 
probable, however, that this reform was not strictly carried 
out, for, in 1*788, another ordonnance commanded its ob- 
servance, which would hardly have been necessary had not 
some additional sanction been found requisite. 3 The ques- 
tion definitive or prealable, by which the prisoner after 
condemnation was again tortured to discover his accom- 
plices, still remained until 1188, when it, too, was abolished, 
at least temporarily. It was pronounced uncertain, cruel 
to the convict and perplexing to the judge, and, above all, 
dangerous to the innocent whom the prisoner might name 
in the extremity of his agony to procure its cessation, and 
whom he would persist in accusing to preserve himself 
from its repetition. Yet, with strange inconsistency, the 
abolition of this cruel wrong was only provisional, and its 
restoration was threatened in a few years, if the tribunals 
should deem it necessary. 4 When those few short years 

1 Cheruel, Diet. Hist des Institutions de la France, P. II. p. 1220 (Paris, 
1855). 

2 Declaration du 24 Aout 1780 (Isambert, XXVII. 373). 

3 Declaration du 3 Mai 1788, art. 8. "Notre declaration du 24 Aout sera 
executee" (Isambert, XXIX. 532). 

4 Ibid. (Isambert, XXIX. 529). It is noteworthy, as a sign of the temper 
of the times, on the eve of the convocation of the Notables, that this edict, 
which introduced various ameliorations in criminal procedure, and promised 
a more thorough reform, invites from the community at large suggestions on 
the subject, in order that the reform may embody the results of public 
opinion — "Nous eieverons ainsi au rang des lois les resultats de l'opinion 
publique." This was pure democratic republicanism in an irregular form. 

The edict also indicates an intention to remove another of the blots on the 
criminal procedure of the age, in a vague promise to allow the prisoner the 
privilege of counsel. 



ABROGATION. 389 

came around, they dawned on a new France, from which 
the old systems had been swept away as by the besom of 
destruction ; and torture as an element of criminal jurispru- 
dence was a thing of the past. By the decree of October 
9th, 1789, it was abolished forever. 

In Italy, Beccaria, in IT 64, took occasion to devote a few 
pages of his treatise on crimes and punishments to the sub- 
ject of torture, and its illogical cruelty could not well be 
exposed with more terseness and force. 1 It was probably 
due to the movement excited by this work that in 1786 tor- 
ture was formally abolished in Tuscany. Yet Italy, which 
was the first to revive its use in the Middle Ages, was the 
last to abandon it. Unless we may disbelieve all that is 
told of the means adopted to preserve legitimacy against 
revolutionism during the interval between Napoleon and 
Garibaldi, the dungeons of Naples and Palermo may boast 
of being the last European refuge of this relic of brutal and 
unreasoning force. 

In casting a retrospective glance over this long history 
of cruelty and injustice, it is curious to observe that Chris- 
tian communities, where the truths of the Gospel were 
received with unquestioning veneration, systematized the 
administration of torture with a cold-blooded ferocity 
unknown to the legislation of the heathen nations whence 
they derived it. The careful restrictions and safeguards, 
with which the Roman jurisprudence sought to protect 
the interests of the accused, contrast strangely with the 
reckless disregard of every principle of justice which sullies 
the criminal procedure of Europe from the thirteenth 

1 Dei Delitti e delle Pene § xn. — The fundamental error in the prevalent 
system of criminal procedure is well exposed in Beccaria's remark that a 
mathematician would be better than a legist for the solution of the essential 
problem in criminal trials — "Data la forza dei muscoli e la sensibilita delle 
fibre di un innocente, trovare il grado di dolore che lo fara confessar reo di 
un dato delitto." 

33* 



390 TORTURE. 

almost to the nineteenth century. From this no race or 
religion was exempt. What the Calvinist suffered in Flan- 
ders, he inflicted in Scotland ; what the Catholic enforced 
in Italy, he endured in England; nor did either of them 
deem that he was forfeiting his share in the Divine Evangel 
of peace on earth and goodwill to men. 

The mysteries of the human conscience and of human 
motives are well nigh inscrutable, and it may seem shocking 
to assert that these centuries of unmitigated wrong are 
directly traceable to that religion of which the second 
great commandment was that man should love his neighbor 
as himself. Yet so it was. The first commandment, to 
love God with all our heart, when perverted by supersti- 
tion, gave a strange direction to the teachings of Christ. 
For ages, the assumptions of an infallible church had led 
men to believe that the interpreter was superior to Scrip- 
ture. Every expounder of the holy text felt in his inmost 
heart that he alone, with his fellows, worshipped God as 
God desired to be worshipped, and that every ritual but 
his own was an insult to the Divine nature. Outside of his 
own communion there was no escape from eternal perdition, 
and the fervor of religious conviction thus made persecu- 
tion a duty to God and man. This led the Inquisition, as 
we have seen, to perfect a system of which the iniquity was 
complete. Thus commended, that system became part and 
parcel of secular law, and when the Reformation arose, the 
habits of thought which ages had consolidated were uni- 
versal. The boldest Reformers who shook off the yoke of 
Rome, as soon as they had attained power, had as little 
scruple as Rome itself in rendering obligatory their inter- 
pretation of divine truth, and in applying to secular as well 
as to religious affairs the cruel maxims in which they had 
been educated. 

Yet, in the general enlightenment which caused and 
accompanied the Reformation, there passed away gradually 
the necessity which had created the rigid institutions of 



PROGRESS OP CIVILIZATION. 391 

the Middle Ages. Those institutions had fulfilled their 
mission, and the savage tribes that had broken down the 
worn-out civilization of Rome were at last becoming fitted 
for a higher civilization than the world had yet seen, wherein 
the precepts of the Gospel might at length find practical 
expression and realization. For the first time, in the his- 
tory of man, the universal love and charity which lie at 
the foundation of Christianity are recognized as the ele- 
ments on which human society should be based. Weak 
and erring as we are, and still far distant from the ideal of 
the Saviour, yet are we approaching it, even if our steps 
are painful and hesitating. In the slow evolution of the 
centuries, it may only be by comparing distant periods that 
we can mark our progress; but progress nevertheless 
exists, and future generations, perhaps, may be able to 
emancipate themselves wholly from the cruel and arbitrary 
domination of superstition and force. 



INDEX. 



Abingdon, Abbey of, ordeal of 

lot used by, 244 

miraculous cross, 248 

Abuses of the ordeal, 265, 272 

of torture, 369 

Accusatorial conjurators, 67 

Accusers subjected to the ordeal, 253 
Accuser obliged to inscribe him- 
self, " 290 
even in the case of slaves, 296 
subjected to lex talionis, 290 
torture of the accused by the, 311 
Admiralty courts, duel not allow- 
ed in, 111 
Adrian moderates use of torture, 297 
Adultery, torture justified by, 290 
Advowson, 133 
Africa, numerous ordeals in, 182 
Agobard, St., opposes the duel, 133 
and the ordeal, 267 
Alfonso the Wise of Castile, 312 
restricts the duel, 150 
the use of torture, 315 
does not recognize ordeals, 276 
Amasis of Egypt, 179 
Amiens, nobles of, demand the 

duel as a right, 161 

Amsterdam, case of torture in, 366 
Andrew, St., lance of, 211 

Anglican Church adopts compur- 
gation, 66 
Anglo-Saxons, battle-ordeal un- 
known to the, 83 
torture not used by, 376 
Anselm and the Church of Laon, 

141, 222, 323 
Antoninus Pius extends the tor- 
ture of slaves, 292 
forbids torture after convic- 
tion, 296 
Appeal to God in private quarrels, 249 
Appeal of murder, 171 
defended in Parliament in 
1774, 172 



Appeals always decided by duel, 91 
how conducted in Germany, 94 
from orders to torture, 316, 350 
evaded, 363 
Appellant vanquished, punish- 
ment of, 113 
lex talionis applied to, 114 
Appellant, choice of weapons con- 
ceded to, 117 
Appellate power granted to Parle- 

ment of Paris. 162 

Arnustus and Abbey of Fleury, 235 

Ashford v. Thornton, in 1818, 173 

Assises de Jerusalem, 57, 207 

torture in, 327 

Atrocity of torture system, 369 

Atto of Vercelli opposes the duel, 1 35 

Audefroi-le-Batard, ballad by, 51 
Augustus introduces torture of 

freemen, 285 
his opinion as to the torture 

of slaves, 291 
Austria, Dukes of, permitted to 

employ champions, 101 

torture abolished in, 387 

Avitusof Vienne opposes the duel, 133 

Ayeen Akbery, 179 

Bacon, Lord, recommends tor- 
ture, 379 
Baden, torture abolished, 1831, 387 
Bahr-recht, 247 
Bail required of parties to duel, 116 
responsibility of, 166 
Balance, ordeal of, 224 
used as late as 1728, 225 
form employed in India, 225 
Barbarians, ordeals indigenous 

among, 188 

contrast between them and 

Rome, 300 

nature of their institutions, 301 
torture for freemen unknown 

to their laws, 302 



394 



INDEX. 



Barbarians, torture — 




Battle, ordeal — 




of slaves, 


302 


champions, employment of, 


119 


interests of the owner pro- 




derived from witnesses, 


120 


tected, 


303 


penalties on defeated, 


122 


no torture of witnesses, 


304 


professional, 


123 


disregard of the law by the 




their degradation, 


125 


Merovingians, 


305 


restrictions on use 




Battle ordeal, distinguished from 




of, 


126 


duel. 


75 


of communes, 


131 


origin attributed to Cain and 




of churches, 


132 


Abel, 


79 


opposition of the church, 


133 


in Spain at Roman conquest 


79 


encouraged by the Saxon 




not used by ancient Gauls 




Othos. 


135 


and Germans, 


79 


employed in diplomacy, 


136 


among ancient Danes and 




forced upon the church, 


137 


Irish, 


80 


universal in 10th and 11th 




the Burgundians, 


81 


centuries, 


138 


the Franks, 


81 


noteworthy cases of its em- 




the Lombards, 


82 


ployment, 


139 


unknown among Anglo- 




explanations of its injustice, 


141 


Saxons, 


83 


abrogated in Iceland, 


142 


introduced by William the 




in Denmark, 


143 


Conqueror, 


83 


influence of the Tiers-Etat, 


143 


unknown to the Wisigothie 




of commerce, 


145 


laws, 


84 


of the church, 


147 


used by the Pannonian Goths 


, 85 


of the Roman law, 


148 


and Sclavonic tribes, 


85 


efforts to restrict it in the 




employed as a remedy for 




13th century, 


149 


perjury, 


86 


abolished in Majorca in 1248, 


150 


originally confined to doubt- 




restricted by Alfonso the 




ful cases, 


87 


Wise, 


150 


its use extended by challen- 




by St. Louis, 


152 


ging witnesses, 


88 


opposition of feudalism, 


154 


and judges, 


90 


legislation of Philippe-le-Bel 


157 


appeals always conducted in 




efforts of the Parlement, 


159 


this manner, 


92 


reaction under Louis X., 


161 


slender restrictions on, 


95 


persistent popular faith, 


162 


minimum value for which 




gradual decline in the 14th 




allowed, 


99 


and 15th centuries, 


163 


lofty rank no exemption, 


100 


revived by English occupa- 




used in international ques- 




tion, 


164 


tions, 


101 


becomes obsolete in 16th 




humblest classes subjected 




century, 


167 


to it, 


102 


restricted in Hungary in 




between parties of different 




1492, 


168 


conditions, 


103 


Julius II. prohibits it in 




women and men, 


105 


1505, 


169 


ecclesiastics, 


306 


prevails in Russia until 1649, 


169 


and laymen, 


107 


in Scotland in 16th century, 


170 


in ecclesiastical courts, 


109 


in England in 16th and 17th 




in admiralty courts, 


111 


centuries, 


171 


forms and ceremonies of, 


112 


abrogated in 1819, 


174 


oath preliminary to, 


112 


Bavaria, torture abolished, 1807, 


387 


consequences of defeat, 


113 


Beam, compurgation in 18th 




lex talionis, 


114 


century, 


61 


bail required of contestants, 


116 


restrictions on the duel in, 


98 


punishment for default, 


116 


duel in code of 1552, 


165 


choice of weapons, 


117 


torture not used in 1288, 


333 



INDEX. 



395 



Beaumanoir, Coutumes du Beau- 

voisis, 57 

opinion of the duel, 156 

no allusions to orde.il in, 275 

no allusions to torture in, 334 

Beccaria argues against torture, 389 

Belgium, case of water-ordeal in 

1815, 229 

Bera and Sanila, duel of, 85 

Bernard (St.) approves the ordeal, 

268 
Bernhardi, Mart., argues against 

torture, 385 

Bignon, Jerome, his testimony 

as to water-ordeal, 227 

Bitter water, ordeal of, 180 

Blois, ordonnance of in 1498, 349 

Blood, ordeal of, 245 

examples of its use, 245 

employed in the 17th century, 

246-7 

not used in primitive times, 247 

belief in, still existing, 247 

in 1825, in New York, 259 

Bobenzan, Dr., case of, 357 

Boden, Heinrich von, tract on 

torture, 355 

deplores abuses of torture, 385 

Boot, the, a Scottish torture, 383 

Bordeaux, torture little used, 343 

Bothwell claims the duel in 1567, 170 

Bread, ordeal of, 232 

formulas of, 233 

chiefly used by Anglo-Saxons, 

235 
employed in the 1 7th century, 235 
form used in India, 236 

Bulgarians, use of torture in 9th 

century, 325 

Burgundy, nobles of, demand the 

duel as a right, 161 

Burke, defends the appeal of mur- 
der in 1774, 173 

Calabar bean, ordeal of, 183 

Caligula, appetite for human suf- 
fering, 286 
Caracalla, torture of women for 

poisoning, 290 

Carlovingians, torture not used 

for evidence under, 318 

torture as punishment, 319 

torture unnecessary, 319 

incompatible with forms of 

procedure, 320 

Caroline Constitutions, 353 

Carrouges and Jacques le Gris, 

duel between, 163 



Caschielawis, a Scottish torture, 383 
Celestin III. prohibits the duel, 147 
Champagne, nobles of, demand 

the duel, 161 

protest against torture, 341 

charters of in 1315, 341 

Champion of England, 101 

Champions furnished by suzerain, 105 

weapons of, 117 

employment of, 119 

selected from the family, 119 

as witnesses, 120 

hired, 121 

defeated, punishment of, 122 

professional, 123 

identified with gladiators, 124 

degradation of, 125 

restrictions on use of, 126 

generally employed in civil 

cases, 128 

equality preserved between, 130 

for communities, 131 

in the ordeal, 260 

Charlemagne's use of ordeal of 

cross, 230 

decrees confidence in ordeal, 263 

character of his legislation, 318 

Charles of Anjou, 77 

Charles VI. assumes sole power 

to grant the duel, 164 

Charles the Good of Flanders, 263 
Charles V., criminal code of, 353 
Charters granting ordeal to 

churches, 271. 

granted by Louis Hutin 340 

Chastaigneraye and Jarnac, duel 

between, 167 

Chatelet of Paris, use of torture, 344 
Children as compurgators, 38 

China, ancient form of belief in, 176 
Chou-King, or sacred book of 

China, 177 

Christians, tortured under Nero, 287 
special edicts of Diocletian, 287 
Christianity, influence of, 295, 390 
Christiern V. of Denmark, laws of, 375 
Church, profits derived from ad- 
ministering oaths, 23 
not exempted from the duel, 106 
champions of, 132 
opposition to the duel, 133, 147 
relations of to the ordeal 266 
adverse to torture in ninth 
. century, 319 
hostile to torture until 13th 

century, 325 

influence in introducing tor- 
ture, 330 



396 



INDEX 



Cicero, varying opinions of tor- 
ture, 298 
Civil suits, torture in, 362 
Class privileges, 19 
Claudius, fondness for witnessing 

torture, 286 

Clergy, exemption of from tor- 
ture, 317 
Clovis and the vase of Soissons, 301 
Coke, Sir Edward, administers 

torture, 379 

Colbert, revision of criminal law 

by, 352 

Cold-water ordeal (see Water). 
Coloman, St., tortured to death, 322 
Commerce, influence of, on the 

duel, 158 

on ordeal, 247 

Communes, champions of, 131 

influence of, on the duel, 143 

on ordeals, 277 

averse to torture, 342 

Compurgators (see Conjtirators). 

Compurgation, 24 

universal use of, 24 

antiquity of, 25 

adopted by the church 26 

specially used by ecclesiastics, 

29 
modes of administering oath, 38 
legal value of, 39 

as a substitute for deficient 

testimony, 40 

little confidence inspired by 

it, 45 

safeguards of the system, 49 

perjury occasioned by it, 50 

in England, 53 

in the thirteenth century, 57 
undermined by the Roman 

law, 57 

in Normandy till 1583, 60 

in Beam till 18th century, 16 
in Spain in 14th century, 61 

in Germany in 1548, 62 

in Scotland in 14th century, 62 
in Denmark in 1683, 63 

in Sweden in 1653 63 

in Poland in 18th century, 63 
in England until 19th cen- 
tury, 64, 65 
preserved by the church, 65 
adopted by Anglican church, 66 
Compounding for the ordeal, 262 
Confession under torture retracted, 

367 

estimate of, 368 

Confidence reposed in the ordeal, 261 



Confidence in evidence by tor- 
ture, 297, 367 
Confucius, 177 
Conjurators, 24 
generally kinsmen, 30 
number required, 31 
modes of selecting, 35 
comparison with witnesses, 46 
held guilty of perjury, 47 
penalties inflicted on, 48 
accusatorial 67 
in Swabia 70 
in the Fehmgericht, 70 
in Britanny, 70 
Conrad of Marburg, Grand In- 
quisitor, 58, 270, 272 
Constantine, torture of freemen 

authorized by, 290 

Constitutiones Sicularum, 

57, 149, 274, 329 
Conversion of Danes by ordeal of 

hot iron, 206 

Convicts not tortured for evi- 
dence under Roman law, 296 
tortured under modern laws, 

351, 361, 369 
Corsica, torture in 14th century, 344 
Corsnaed, 322 

Coucy, Enguerrand de, 156 

Coucy, Jacques de, case of 351 

Council of Valence denounces 

the duel, 134 

of Lateran, duel prohibited 

by, 147 

ceremonies of ordeal in- 
terdicted by, 272 
Courts liable to challenge by de- 
feated pleaders, 90 
admiralty, 111, 278 
Cous (les) lou roi, 110 
Crimen majestatis, freemen lia- 
ble to torture for, 285 
extended application of, 286 
slaves tortured against mas- 
ters in, 294 
in modern times, 314, 317, 340, 
344, 356, 379, 386 
Cripples forced to furnish cham- 
pions, 105 
Cross, ordeal of, . 230 
earliest instance in 752, 230 
favored by Charlemagne, 230 
substitutes allowed in, 231 
variations of, 231 
forbidden by Louis-le-Debon- 

naire, 231 

again favored by him, 232 

soon disappears, 232 



INDEX. 



397 



Ciilin, synod of, condemns water 
ordeal in 1745, 228 

Damages for tortured slaves, 284 
Danes converted by ordeal of 

hot-iron, 206 

Dantzic, case of water ordeal in 

1836, 229 

Deaf and dumb liable to torture, 360 
Deceit authorized to obtain con- 
fessions, 373 
Decurions not liable to torture, 289 
Defaulters in duel punished, 116 
Defeat in duel a conviction of 

perjury, 112 

Defendant, vanquished, punish- 
ment of, 113 
choice of weapons conceded 
to, 118 
Defence, hopelessness of under 

torture system, 360 

Degradation of professional 

champions, 125 

Del Rio, his instructions as to 

torture, 363, 373 

Denmark, compurgation in 1683, 63 
antiquity of battle ordeal in, 80 
duel abrogated in, 143 

ordeal abolished in 13th cen- 
tury, 274 
torture not legalized until 
1683, 375 
Desrene, 6© 
Diocletian, his persecution of 

Christians, 288 

forbids the torture of soldiers 

and others, 289 

restricts use of torture, 297 

Divining rod, 279 

Divination by lot forbidden by 

the church, 243 

Doctors exempt from torture, 314 
Dog of Montargis, 162 

Domitian, torture of patrician by, 290 
Doubtful results of ordeal, 265 

Duel, judicial (see Battle Ordeal). 
Duels, prevalence of under Henry 

IV., 78 

Dunning, defends the appeal of 
murder in 1774, 173 

Eccelino di Romano, 329 

Ecclesiastical courts, use of com- 
purgation by, 66 
jurisdiction over duels, 109 
opposition to the ordeal, 207 
Ecclesiastics and women not al- 
lowed to testify, 89 

34 



Ecclesiastics — 

obliged to undergo the duel, 106 
struggle to maintain the 

duel, 110 

and the ordeal, 271 

claim exemption from ordeal, 269 
not liable to torture, 317 

their presence at torture pro- 
hibited, 320 
Edictum Theoderici, 84 
Egypt, traces of ordeal in, 179 
Egyptians, torture not used by, 282 
Elfstan of Winchester, case of, 200 
Emerich von Rosbach, Processus 

Criminalis, 355 

England, compurgation used un- 
til 19th century, 64, 65 
battle ordeal introduced at 

the Conquest, 83 

restrictions on the duel in, 97 
duel in civil suits until 1571, 171 
duel in criminal cases until 

1819, 173 

ordeal abolished in 1219, 273 
torture under King Stephen, 324 
history of torture in, 376 

not recognized by common 

law, 377 

used under royal prerogative, 378 

abandoned after 1640, 381 

except in cases of witchcraft, 381 

Peine forte et dure, 384 

Epicharis, fortitude of, 288 

Equality of weapons in the duel, 118 

Erfurt, torture of inhabitants of, 324 

Estimate of extorted confession, 368 

Estrapade, torture of, 316, 351 

Etablissements of St Louis, 153 

no allusions to ordeal, 275 

no allusions to torture, 333 

Eueharist, miraculous powers of 

the, 241 

ordeal of, 236 

formulas of, 237 

used in 7th century, 237 
cases of its employment, 238 
forbidden by Robert the 

Pious, 239 

and by Gregory VII., 239 
other cases of its use, 241 
Eugenius II. introduces the cold 

water ordeal, 218 

European ordeals identical with 

Indian, 178 

Evidence, varieties of, 17 

of relatives, 30 

by torture, value of, 297 

Exemption of nobles from torture, 314 



398 



INDEX. 



Experimentum crucis, 



232 



False decretals disapprove of 

torture, 326 

Family, responsibility of the, 15 

champions furnished by, 119 

Fees to priests for the ordeal, 271 

Fehmgericht, accusatorial oaths 

in the, 70 

Feini, antiquity of battle ordeal 

among, 80 

the ordeal indigenous among, 190 
Fendilles and des Guerres, duel 

between, 167 

Feudal efforts to maintain the 

duel, 154 

to resist torture, 339 

Feudalism weakened by the Ro- 
man law, 148 
not favorable to torture, 321 
justice still rendered in pub- 
lic, 321 
occasional allusions to tor- 
ture, 322 
torture used to extort money, 324 
opposition to torture in 1315, 339 
Fian, Dr., case of, 383 
Fire, ordeal of, 208 
at first used for slaves and 

strangers, 208 

case of Petrus Igneus, 209 

Grossolano of Milan, 210 
the lance of St. An- 
drew, 211 
St. Francis of Assisi, 212 
Savonarola, 213 
generally an ecclesiastical 

ordeal, 215 

relics tested by, 216 

Fontaines, Pierre de, 58 

opinion of the duel, 156 

no allusions to ordeal in, 275 

no allusions to torture in, 334 

Fore-oath of Anglo-Saxons, 68 

For de Beam, compurgation in, 

38, 43, 61 

duel in, 165 

no allusions to torture in, 333 

Formula of compurgatorial oath, 43 

Fountains, miraculous, 185 

France, restrictions on the duel 

in, 95 

struggle to abolish the duel 

in, 152 

duel never formally abol- 
ished, 168 
cold water ordeal in 17th 
century, 227 



France — 

ordeal obsolete in 13th cen- 
tury, 275 
torture appears in 1254, 332 
scarcely used, 333 
condition of roturiers, 335 
eases reported in the Oliin, 336 
opposition of feudalism, 339 
charters granted by Louis 

Hutin, 340 

torture permanently estab- 
lished, 342 
exceptions among com- 
munes, 342 
torture universal by end of 

14th century, 344 

procedure adopted in 1498, 349 
perfected in 1539, 350 

question preparatoire and 

prealable, 350 

question ordinaire and ex- 
traordinaire, 351 
ordonnance of 1670, 352 
torture abolished 1780-89, 388 
Francis I., 77 
duel ordered by, 166 
perfects the system of tor- 
ture, 350 
Francis of Assisi, St., case of, 212 
Fredegonda, 31, 305 
Frederic I. uses torture as pun- 
ishment, 323 
Frederic II., 57 
restricts the duel, 149 
abolishes ordeal in 1231, 274 
introduces torture, 329 
Frederick the Great limits use of 

torture, 386 

Freedmen not tortured against 

their patrons, 293 

doubt as to their liability to 

torture, 293 

not tortured by Ostrogoths, 307 
Freemen of Rome not liable to 

torture, 285 

torture of, legalized, 288 

Frisia, ordeals used in the 13th 

century, 274 

Frisians, ordeal of lot among the, 243 
Fuero Juzgo, 312 

Gatjls, torture among the an- 
cient, 303 
Gentoo code, 179 
Germans, ancient, 15 
Germany, compurgation in 1548, 62 
restrictions on the duel in, 96 
ordeal in 14th century, 275 



INDEX 



399 



324 
327 
344 
353 
353 

355 
386 
291 
233 
344 

215 



Germany — 

tyranny of the nobles, 
torture not in early codes, 
torture of slaves in 1356, 
torture in, 

Constitutions of Charles V., 
torture system from 16th to 

18th century, 
gradual abolition of torture, 
Gladiators tortured as witnesses, 
Godwin, Duke of Kent, case of, 
Golden Bull of 1356, 
Gothic ritual maintained by duel 
and ordeal, 138, 

Goths, Pannonian, battle ordeal 

used by the, 85, 190 

civilization of the, 84, 306 

Graefe, Johann, argues against 

torture, 384 

Grandier, Urbain, case ot, 371 

Gratian disapproves of torture, 326 
Greek Empire, Lower, ordeal used 

in, 207 

Greece, ordeal anciently used in, 184 
torture prevalent in, 282 

confined by law to slaves, 283 
exceptions to this, 283 

slave testimony the best evi- 
dence, 283 
damages of tortured slave 

paid for, 
modes of torture in vogue 
Gregory of Tours, case of, 21, 305 
Gregory I. disapproves of tor- 
ture, 
Grimoald restricts the battle 

ordeal, 
Grossolano of Milan, case of, 
Guebres, the, 

Guelf II. of Altorf, case of, 
Gundeberga, case of Queen, 



284 
284 



325 



210 
181 

220 

82 



Hanover, torture abolished, 

1822, 387 

Hebrews, ordeals of the, 180 

Henry II. (St.) challenged by 
Hermann of Swabia, 100 

Henry the Lion, 140 

Henry II. of Navarre orders the 
duel in 1518, 166 

Henry II. of France, last duel 
granted by, 167 

Henry of Limburg and the Arch- 
bishop of Treves, 236 

Henry IV. (Emp ) and ordeal of 
Eucharist, 239 

Henry III. abolishes ordeal in 
England, 273 



Heresy, torture in trials of, 317, 330 
Hildebert of le Mans disapproves 

of torture, 322 

Hildebrand condemned by cold 

water ordeal, 221 

his use of ordeal of Eucha- 
rist, 239 
Hincmar of Rheims, his argu- 
ments for ordeal, 199 
explanation of hot water 

ordeal, 196, 199 

of cold water ordeal, 217 

Holland, torture abandoned in, 385 

Hungary, duel restricted in 1492, 168 

use of torture in, 345 

Iceland, duel abrogated in, 142 
ordeal abolished in 13th cen- 
tury, 274 
torture in, 374 
used on pregnant women, 374 
abolished in 1258, 375 
Ictus capituli, 110 
regis, 110 
Imagination, effects of ordeal on, 259 
Independence of the Teuton 

tribes, 301 
India, antiquity of ordeal in, 178 
ordeals identical with Euro- 
pean, 178 
modern use of ordeal, 179 
hot water ordeal, 201 
red-hot iron ordeal, 202 
cold water ordeal, 217 
trial by balance, 225 
ordeal of rice, 236 
of the lot, 245 
poison ordeal, 250 
Influence derived from ordeal, 271 
of Roman laws in modern 
times, 300 
Innocent III. alters the compur- 

gatorial oath, 54 
forbids ecclesiastical duels, 107 
prohibits the duel, 147 
the ordeal, 272 
Innocent IV., statutes of inqui- 
sition, 330 
Inquisition, use of compurgation 

by, 58, 65 
influence of, on torture, 330 
system of investigation, 331 
influence on judicial pro- 
ceedings, 348, 370 
system in the 17th century, 372 
Inquisitorial process introduced, 348 
perfected by Francis I., 350 
hopelessness of defence, 360 



400 



INDEX 



Insane not to be tortured, 359 

Inscription of accuser, 290, 297 
International questions referred 

to the duel, 101 
Ireland, antiquity of battle 

ordeal in, 80 
Irish, the ordeal indigenous 

among the, 190 

Iron, red-hot, ordeal of, 201 

mode of administering, 201 

in India, ' 202 

sometimes an aristocratic 

ordeal, 203 
cases of its employment, 204 
used to prove legitimacy, 205 
extent of its use, 207 
bands as punishment and or- 
deal, 248 
Irregular ordeals, 248 
Italy, the duel prohibited in 1505, 169 
torture first revived in, 328 
recent use of torture in, 389 
Ivo of Chartres, 268 
declines to adjudge the duel, 109 

James I. approves the ordeal of 

blood, 246 

eulogizes water ordeal, 228 

administers torture, 383 

Japanese ordeals, 180 

Jarnac and La Chastaigneraye, 78 
Java, ordeals in, 181 

Jayme I. of Aragon, abolishes 

ordeals, 276 

Jeanne of France, case of, 160 

Jeffniteed, 69 

Jews liable to the duel, 103 

Jovem lapidem jurare, 187 

Judges liable to challenge by de- 
feated pleaders, 90 
royal, not liable to challenge, 93 
liability of, for undue tor- 
ture, 310, 315, 355, 364 
torture dependent on their 

discretion, 358, 361 

influence of torture system 
on, 365 

Judicial duel. (See Battle Ordeal.) 
Juise, 201, 207 

Julius II. prohibits the duel in 

1505, 169 

Juramentum supermortuum, 41 

Jury-trial, probable origin of, 36 

among Scandinavian nations, 375 

Justice, publicity of, under Car- 

lovingians, 320 

Justinian authorizes torture for 
adultery, 290 I 



Kindred, responsibility of, 
Kinsmen, evidence of, 
Koran, absence of ordeal in, 



15 

30 

182 

78 



La Chastaigneraye, 
Lamoignon endeavors to amelio- 
rate the law, 352 
Lance of St. Andrew, case of, 211 
Languedoc. charter of, in 1315, 340 
Lang (J. P.), in 1661, hesitates 

to condemn water ordeal, 228 

Laon, robbery of church of, 

141, 222, 323 
Lateran, council of, prohibits the 

duel, 141 

prohibits ordeal, 272 

Latins, traces of ordeals among, 186 
Legislative functions of duel, 135, 140 
Leo III., trial of, by Charlemagne, 27 
Lese Majeste (seeGrime)i Majestatis) . 
Leudastes, case of, 305 

Lex apparens, or paribilis, 100 

Gundebalda, 81 

Mona chorum, 268 

talionis for defeated appel- 
lant, 1 14 
accuser subject to, in 

Rome, 290 

under Wisigothic code, 310 

Lille, compurgatorial oaths in, 60 

torture unused in 1354, 343 

Limitations of torture disregarded, 

363 

Livres de Jostice et de Plet, 333 

Lombard law, 82 

Lot, ordeal of, among the Hebrews, 180 

in the middle ages, 242 

used in the earliest times, 242 

form employed by the Frisians, 

243 
examples of its use, 244 

form used in India, 245 

Lothair and Teutberga, case of, 

199, 238 
Lothair II., tortures the citizens 

of Erfurt, 324 

Louis leDebonnaire prohibits the 

cold water ordeal, 219 

forbids ordeal of cross, 231 

resumes its use, 232 

Louis, St., his efforts to abolish 

the duel, 152 

sanctions use of torture, 332 

equity of his procedures, 348 

Louis Hutin maintains the use of 

torture, . 339 

Louis XIV. revises the criminal 
code, 352 



INDEX. 



401 



Low vs. Paramore, ease of in 

157], 171 

Loy Gombette, 81 

Luitprand restricts the battle or- 
deal, 82 

Madagascar, ordeal in, 184 

Magicians liable to torture under 

Ostrogoths, 308 

torture requisite in trials of, 370 
Majestatis (see Crimen Majestatis) . 
Majorca, duel abolished in, 150 

Malacca, ordeals in, 181 

Manasses, Archbishop of Rheims, 46 
Manu, laws of, importance of 

oath in, 20 

ordeals indicated in, 177 

torture not alluded to, 281 

Marc of silver, 99 

Marigny, Enguerrand de, 338 

Maritime laws, 111, 278 

Masserano, Marquis of, 362 

Merovingians, their disregard of 

the law, 305 

Milanese judge, case of, 366 

Moine de Caen, torture of, 351 

Monachorum Lex, 268 

Montaigne ridicules torture, 384 

Montesquieu argues- against tor- 
ture, 387 
Mosaic law, ordeals in, 180 
torture not alluded to, 282 
Moslems, traces of ordeals among, 182 
Mou-Vang,instructions to judges, 177 
Mozarabic ritual maintained by 

duel and ordeal, 138,215 

Muratori, his belief in water or- 
deal, 228 

Naples, duel restricted in, 149 

ordeal abolished in 1231, 274 
first appearance of torture, 328 
recent use of torture in, 389 

Nefninge, or Danish jury, 375 

Nempdarii, or Swedish jury, 376 

Nero, cruelties inflicted on Chris- 
tians, 287 
Newald (Hermann) deprecates 

water ordeal, 226 

Nicholas I. forbids ecclesiastical 

duels, 107 

opposes the duel, 134 

prohibits torture, 325 

Nicolas, Augustin, writes against 

torture, 385 

Nithstong, 116 

Nobles of France demand the 
duel in 1315, 161 



Nobles, immunity from torture, 

314, 317, 356 
Norgaud, Bishop of Autun, 45. 50 
Normandy, compurgation in 16th 

century, 60 

duel legal until 1583, 165 

charters of in 1315, 340 

Norway, ordeal abolished in 13th 

century, 274 

Oath, importance of in Roman 

law, 18 

of negation not sufficient in 

primitive times, 18 

in Germany, 19 

multiplied, 21 

classification of, 22, 35 

adjuncts essential to, 22 

of ecclesiastics, 27 

compurgatorial formula of, 43, 54 
altered by the church, 54 
modes of administering, 38 
sepulchral, 41 

accusatorial, classification of 

in Bordeaux, 69 

preliminary to the duel, 112 

purgatorial considered as or- 
deal. 195, 248 
Offse judicium, 232 
Olim, the, 58 
cases of torture reported in, 336 
Opposition of the church to the 

duel, 133 

of papacy to ordeal, 267 

Ordeal of battle (see Battle Ordeal). 
Ordeal, China an exception to its 

prevalence, 176 

India, its antiquity in, 178 

identity in India and Europe, 178 
Egypt, traces in, 179 

among the Hebrews, 180 

in Eastern Asia, 180 

traces of among the Moslems, 182 
in Polynesia, 182 

numerous in Africa, 182 

in Madagascar, 184 

in ancient Greece, 184 

traces of among the Latins, 186 
indigenous among the Bar- 
barians, 188 
universal throughout Europe, 192 
varieties of, 196 
of boiling water, 196 
of red-hot iron, 201 
of fire, 208 
of cold water, 216 
of the balance, 224 
of the cross, . 230 



34* 



402 



INDEX. 



Ordeal — 

of bread or cheese, 232 

of the Eucharist, 236 

of the lot, 242 

of blood, 245 

of purgatorial oaths, 248 

irregular, 248 

of poison, 250 

regulations of the ordeal, 250 
compulsory under order of 

court, 250 

in absence of direct testi- 
mony, 251 
right of appellant or defend- 
ant to demand it, 251 
accusers obliged to undergo it, 253 
employed in default of com- 
purgation, 253 
regarded as a punishment, 255 
employed as a torture, 257 
supplanted by torture, 258 
effects on the imagination, 259 
use of substitutes or cham- 
pions, 260 
used especially for serfs, 260 
confidence felt in the process, 261 
composition allowed in it, 262 
explanation of its uncer- 
tainty, 263 
occasional doubt as to results, 265 
efforts to preserve impar- 
tiality, 265 
posture of the church re- 
specting it, 267 
opposition of the papacy, 267 
defended by the church at 

large, 267 

exemption sometimes 

claimed by ecclesiastics, 268 
motives of the church in fa- 
vor of ordeal, 271 
abuse of power by ecclesias- 
tics, 272 
prohibition by Innocent III. 272 
secular legislation against, 273 
abolished in England in 1 219, 273 
restricted in Scotland in 13th 

century, 274 

abolished by Fred. II. in 

1231, 274 

and by the Northern Nations, 274 
obsolete in France in 13th 

century, 275 

employed in Germany in 14th 

century, 275 

gradual abolition in Spain, 276 
lingers until 16th and 17th 
centuries, 277 



Ordeal — 

influence of Roman law, 277 

of communes, 277 

of commerce, 278 

Ordonnance of 1260, 153 

of 1293 and 1303, 157 

of 1306, 158 

of 1566, 168 

of 1254, 332, 335 

of 1498, 349 

of 1539, 350 

of 1670, 352 

Ostrogoths, civilization of, 307 

torture not used for freemen, 307 

but for slaves, 307 

Otfrid reduces the Tudesque to 

writing, 188 

Otho I. encourages the duel, 135 

Otho II. extends its application, 137 

Otho of Bavaria, 139 

Palermo, recent use of torture in, 389 

Pallor evidence for torture, 358 

Panis conjuratio, 232 

Papacy, opposition to the duel, 147 

to ordeal, 267 

degradation of, in 10th and 

11th centuries, 270 

Parlement of Paris evades the 

duel, 159 

appellate power granted to, 162 
forbids water ordeal, 1588, 

1601, 1641, 227 

decisions legalizing torture, 336 

Partidas, las Siete, 56 

do not recognize ordeals, 276 

regulations of torture in, 312 

Pascal I., case of, 29 

Paternity proved by ordeal of hot 

iron, 205 

Pedro I. of Aragon, 77 

Pegu, ordeals in, 181. 

Peine forte et dure, 384 

Penalties inflicted on witches, 223 
Penniwinkis, a Scottish torture, 383 
Perigord, charter of, in 1319, 341 
Perjury caused by compurgation, 50 
duel used as a remedy for, 86 
Petrus Igneus, case of, 209 

Philadelphia, ordeal of blood in 

1860, ■ 247 

Philippe-le-Bel restricts the duel, 157 
remonstrates against Inquisi- 
tion, 331 
uses Inquisition against 

Templars, 332 

Philippe-le-Long, charter grant- 
ed by, 341 



INDEX. 



403 



Philippe de Valois grants appel- 
late power to the Parleraent, 1G2 
Philip of Burgundy abolishes the 

duel, 164 

Philotas, torture of, 283 

Physiognomy does not justify 

torture, 358 

Piso, conspiracy of, 238 

Plough-shares, ordeal of red hot, 201 
Poison ordeals in Africa, 183 

in Madagascar, 184 

in India, 250 

Poisoning, torture of women for, 290 
Poland, compurgation in 18th 

century, • 63 

use of torture in, 346 

Poppo converts the Danes by 

ordeal of hot iron, 206 

Pregnant women exempt from 

torture, 296, 314, 317, 355 

except in Iceland, 374 

Priestly fees for the ordeal, 271 

Priests not liable to torture in 

Rome, 289 

favors shown to, in torture, 357 
Professional champions, 123 

identified with Roman gladi- 
ators, 124 
degradations inflicted on 

them, 125 

Prohibition of duel and ordeal 

by Innocent III., 107, 147, 272 

Prudentius, hymn to St. Vincent, 299 

Prussia, torture limited in 1740, 386 

West, water ordeal used till 

1745, 228 

Publicity of justice under Carlo- 

vingians, 320 

Punishment of conjurators, 48 

for defeat in the duel, 112 

for default in the duel, 116 

of defeated champions, 122 

ordeal regarded as, 255 

Purgatorial oaths used as ordeal, 248 

Purrikeh, or Indian ordeal, 179 

Qdercy, charter of, in 1319, 341 

Question preparatoire, 350 

abolished, 1780, 388 

definitive or prealable, 350 

abolished, 1788, 388 

ordinaire and extraordinaire, 351 
Quintus Curtius, opinion of tor- 
ture, 299 

Ragttald, Swedish laws of, 376 

Rank, no exemption on account 

of, 100 



Rank- 
difference in, a limitation on 
the duel, 96, 103 

Reduplication of oaths, 21 

Regulations of the ordeal, 250 

Relics necessarv for the validity 

of oaths," 22 

tested by ordeal of fire, 216 

employed in ordeal, 248 

Repetition of torture, 367 

Responsibility of conjurators, 48 

of bail of duellists, 166 

Restrictions on the use of cham- 
pions, 126 
Retraction of extorted confession, 367 
Rhodian laws, freemen subject 

to torture by, 283 

Richard Coeur de Lion and 

Henry II., 245 

Richard III. and Henry VI., 245 
Rickius (Jacob) defends the 

water ordeal in 1596, 226 

his torture of witches, 372 

Riculfus, torture of, 306 

Riga, treaty with Smolensko, 278 

Robert the Pious forbids ordeal 

of Eucharist, 239 

Rodolph of Hapsburg restricts 

the duel, 146, 149 

Rome, traces of ordeal in, 186 

use of torture in, 284 

freemen not liable under the 

Republic, 285 

torture of freemen intro- 
duced by the Emperors, 285 
cruelties of the early Caesars, 285 
persecution of Christians, 287 
torture of freemen legalized 

tinder limitations, 288 

frequent legislation requisite 

to protect them, 289 

extension of crimes for which 

they were tortured, 290 

accuser subject to lex talio??is, 290 
witnesses sometimes liable 

to torture, 291 

slaves, torture requisite to 

their testimony, 291 

not 'tortured against 

their masters, 292 

freedmen, doubt as to their 

liability, 293 

liability of slaves in majes- 

tatis, 294 

influence of Christianity, 295 
slaves crippled in torture 

paid for, 296 

general limitations of torture, 296 



404 



INDEX 



Rome — 

value of evidence by torture, 297 

conflicting opinions of, 298 

modes of torture employed, 299 

influence on modern laws, 300 

Roman States, the duel prohibited 

in 1505, 169 

Roman law, revival of study of, 55 
influence of, in abolishing 

negative proofs, 56 

on the Goths, 84, 306 

on the duel, 148 

on ordeal, 277 

on torture, 327 

Rotharis restricts the battle ordeal, 82 

Russia, duel allowed until 1649, 169 

ordeal for theft in, 229 

use of torture in, 346 

torture abolished in, 387 

St. Dizier, torture unused in 

1354, 342 

Sandemend, or Danish jury, 375 

Sassy-bark, ordeal of, 183 

Sathee, 236 

Savonarola, case of, 213 

Saxons and Luitzes, duel be- 
tween, 102 
Saxony, torture abolished in 

1770-83, 387 

Scavenger's daughter, 380 

Scheingehen, or ordeal of blood, 247 
Sclavonic tribes, battle ordeal 

universal, 85 

Scotland, compurgation in 14th 

century, 62 

duel allowed in 16th century, 170 
ordeal of blood used in 17th 

century, 246 

ordeals restricted in 13th 

century, 274 

torture of late introduction 

in, 382 

terrible character of Scottish 

torture, 383 

abolished in 1709 by United 
Parliament, 383 

Scribonius, in 1583, advocates 

water ordeal, 226 

Secrecy of the inquisitorial pro- 
cess, 348 
Seguidors, 38 
Sejanus, plot of, 285 
Semperfri, 104 
Senchus Mor, or Brehon law, 80, 190 
Serfs, ordeal reserved for, 260 
Sexhendeman, 35 
Shower-bath, torture of, 347 



Sicily, recent use of torture in, 389 

Siete Partidas, 312 

their authority, 316 

duel restricted in, 150 

regulations of torture, 313 

Skevington's daughter, 380 

Slaves admitted as conjurators, 38 

allowed the duel against 

their masters, 102 

ordeal reserved for, 260 

torture requisite to their tes- 
timony in Greece, 282 
and in Rome, 285, 291 
not tortured against their 

masters in general, 292, 294 
torture restricted by Tacitus, 295 
crippled in torture paid for, 296 
torture of, among the Bar- 
barians, 302 
interests of the master pro- 
tected, 303 
not tortured as witnesses, 304 
torture of, under the Ostro- 
goths, 307 
under Wisigoths, 309 
liable to torture in Spain, 

314, 318 
torture of, in Germany in 

1356, 344 

in Iceland subject to torture, 375 
Sleeplessness, torture of, 366, 381, 383 
Smith, Sir Thomas, administers 

torture, 379 

Smolensko, treaty with Riga, 278 
Solidarity of the family among 

Teutonic races, 16, 17' 

Solidus, or sou, 99 

Sorcerers, tortured by Ostro- 
goths, 308 
insensible to torture, 370 
Sorcery, torture requisite in 

trials of, 370 

Spain, duel restricted in, 150 

gradual abolition of ordeal, 276 
torture under Wisigoths, 309 
in the Fuero Juzgo, 312 
in the Siete Partidas, 312 
spontaneous confession re- 
quisite, 313 
repetition of torture, 313 
exemptions, 313 
liability of slaves, 314 
liability of witnesses, 315,316 
general restrictions, 315 
responsibility of judges, 315 
appeals, 316 
varieties of torture in use, 316 
in the 17th century, 317 






INDEX. 



405 



Staff, ordeal of, 259 

Statute of Gloucester, 1333, 171 

Staundford, Sir William, ap- 
proves of ordeals in 1551, 277 
Stockneffn, 37 
Strappado, 316, 351 
Substitutes in the ordeal, 260 

allowed in ordeal of cross, 231 
Succession of estates decided by 

the duel, 135 

Superstition, perpetuation of, 279 
Swantopluck of Bohemia, 324 

Sweden, compurgation in 1653, 63 

ordeal abolished in 13th cen- 
tury, 274 

torture not used in, 376 

Switzerland, torture abolished in, 387 

Tacitus, restricts the torture of 

slaves, 295 

Tahiti, traces of ordeal in, 182 

Tangena nut, ordeal of, 184 

Templars, ordeal in trial of, 208 

torture of, 332 

Testimony of tortured slaves the 

best evidence in Greece, 283 

Testimony of gladiators, torture 

necessary to, 291 

and of slaves, 283, 285, 291 

Teutberga, case of, 199 

Teutonic knights introduce or- 
deal in Livonia, 275 
Teutonic independence, 301 
Theodoric, his reverence for the 

Roman Law, 84 

deprecates the battle ordeal, 85 

Edict of, 307 

torture of sorcerers by, 308 

Theodosius the Great forbids 

torture of priests, 289 

Thibet, ordeals in, 181 

Thomas of Woodstock, Duke of 

Gloucester, 171 

Tiberius, cruelties practised by, 285 
extends the application of 

majestatis, 286 

device to obtain evidence of 
slaves, 293 

Tiers-Etat, influence of on the 

duel, 143 

on the ordeal, - 277 

Torture, ordeal regarded as a, 257 

ordeal supplanted by, 258 

not used by Hindus, Jews, 

and Egyptians, 281 

largely employed in Greece, 282 
regulations of torture in 
Home, 284 



Torture — 

contrast between Rome and 

the Barbarians, 300 

among Barbarians, not le- 
gally used for freemen, 302 
but for slaves, 303 

disregard of the law, 305 

among the Ostrogoths, 307 

among the Wisigoths, 309 

in the Fuero Juzgo, 312 

in the Siete Partidas, 312 

in Spain in 17th century, 317 
not used under the Carlovin- 

gians, 318 

nor under the Feudal Sys- 
tem, 321 
occasional allusions to, 322 
disapproved by the church 
till 13th century, 325 
. old forms of evidence be- 
come disused, 326 
not alluded to in early Ger- 
man codes, 326 
first appearance in Assises 

de Jerusalem, 326 

revived by Frederic II. in 

Naples, 329 

influence of Inquisition, 330 

appears in France in 1254, 332 
not alluded to in codes or 

text-books, 333 

six cases reported in the 

Olim, 336 

resistance of Feudalism, 339 

established by Louis Hutin, 340 
exceptions among chartered 

towns, 342 

universal by end of 14th 

century, 244 

in Germany in 1356, 344 

in Corsica in 14th century, 344 
in Venice, 345 

in Hungary, 345 

in Poland, 346 

in Russia, 346 

secret inquisitorial proceed- 
ings introduced, 348 
French system of 1498, 349 
perfected by Francis I. in 

1539, 350 

revised by Louis XIV. in 

1670, 352 

in Germany, 353 

Caroline Constitutions, 353 

influence of Roman law, 355 

excepted classes, 356 

torture left to discretion of 
tribunal, 357 



40G 



INDEX. 



Torture — 

extension of the system, 359 

privileges allowed to defence, 360 
reduced to nullity in prac- 
tice, 361 
worthlessness of restrictions, 363 
influence on the judges, 365 
real estimate of extorted 

confessions, 367 

atrocity of the system, 369 

influence of witchcraft, 370 

in Iceland, 374 

in Denmark, 375 

in Sweden, 376 

in England, 376 

in Scotland, 382 

opposition to, 384 

gradual abolition in Ger- 
many, 1740-1831, 386 
abolished in Russia, 1801, 387 
in France, 1789, 388 
in Tuscany, 1786, 389 
used in Naples until recently, 389 
Toulouse, magistrates of, exempt 

from torture, 340 

Transylvania, water ordeal used 

in 18th century, 228 

Treason, freemen liable to tor- 
ture for, in Rome, 285, 289 
slaves tortured against mas- 
ters for, 294 
in modern times, 314, 317, 340, 
344, 356, 379, 386 
Treves, Archbishop of, and 

Henry of Limburg, 236 

Trial by balance, 224 

Twelfhendeman, 35 

Twyhindeman, 35 

Ugo, Marquis of Tuscany, 205 
Uncertainty of ordeal, explana- 
tions of, 263 
Upstallesboom, laws of, 274, 376 
Upton, Nicholas, 164 
Urpheda, 368 
Uta, Queen of Germany, 31 
Utrecht, torture disused in, 385 

Valenciennes, duel at, in 1455, 165 
Valentinian III., protection of 

slaves by, 296 

Valerius Maximus, cases of tor- 
ture, 298 
Value of evidence by torture, 297 
Van Arckel, combat of, 76 
Varieties of ordeal, 196 
of torture used in Greece, 284 
in Rome, 299 



Vase of Soissons, 301. 

Vehmgericht. (See Fehmgericht.) 
Venice, use of torture in, , 345 

Vermandois, nobles of, demand 

the duel, 161 

Viescher, August, 74 

Vigils, torture of, 366, 381, 383 

Villadiego, directions as to tor- 
ture, - 317 
Villeins, inequality of combat 

for, 103 

ordeal reserved for, 260 

debarred from all appeal, 336 
Villon subjected to water torture, 350 
Vincent, St., his martyrdom, 300 
Vladislas II., of Hungary, re- 
stricts the duel, 169 
Voltaire argues against torture, 388 
Vorogeia, or Russian diviner, 229 

Wager of law, 24 

of battle (see Battle Ordeal). 
Waldemar II. of Denmark, laws 

of, 375 

Waldrada and Lothair, 199 

Warfare, right of private, 15 

Water, bitter, ordeal of, 180 

boiling, ordeal of, 196 

mode of administration, 196 

exorcisms employed, 198 

its universality, 200 

its use in India, 201 

cold, ordeal of, 216 

mode of administering, 216 

explanation of it, 217 

introduced by Eugenius 

II., 218 

forbidden by Louis-le- 

Debonnaire, 219 

it flourishes never- 
theless, 219 
generally a servile or- 
deal, 220 
cases of its employment, 221 
prolonged use in witch- 
craft, 222 
loss of weight in witches, 224 
ordered for witches by 

Louis Hutin, 225 

revived in 16th century, 226 
controversy concerning 

it, 1583-'94, 226 

use continued in 17th 

century, 227 

forbidden by Paris Par- 

lement, 227 

encouraged by James I. 
of England, 228 



INDEX. 



407 



Water, cold, ordeal of — 

used in West Prussia till 

1745, 228 

cases in 1815 and 1836, 229 
cognate practice in 

Russia, 229 

Water torture, 349 

Weapons of champion in duel, 117 

choice of, in duel, 117 

equality of, in the duel, 118 

Weight, loss of, by witches, 224 
Wenceslas of Bohemia prohibits 

torture, 322 
William the Conqueror intro- 
duces the battle ordeal, 83 
William of Ely, 53 
Wirtemburg, torture abolished, 

1806, . 387 
Wisigothic code, its superiority, 84 
Wisigoths, their laws, 308 
torture allowed for slaves, 309 
and for freemen, 309 
under careful re- 
strictions, 310 
disregarded in practice, 311 
perpetuated among 

Spaniards, 312 
Witchcraft, legal penalties in- 
flicted on, 223 



Witchcraft — 

torture indispensable in, 370 
extent of persecution for, 373 
torture used in England for, 381 
atrocious trials for, in Scot- 
land, 383 
Witches lose their weight, 224 
tortured by Ostrogoths, 308 
insensible to torture, 370 
Witnesses of defeated party pun- 
ished, 86, 90 
liable to challenge, 88 
employed as champions, 120 
sometimes liable to torture, 

290, 315, 316, 359 
no torture of, among Barba- 
rians, 304 
Women and children admitted as 

conjurators, 38 
Women and ecclesiastics not al- 
lowed to testify, 89 
Women, duel between men and, 145 

Yyes of Chartres. (See Ivo.) 

Zanger, Johann, his treatise on 

torture, 355 

Zoroaster, legend of, 181 






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